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  1. Trump's War on Immigrants Puts Americans in Fear as Anti-Muslim Hate Spreads and DOL Intimidates H-1B Employers. Roger Algase

    Update, June 13:

    A June 13 POLITICO story reports that according to multiple studies, Donald Trump's appeal to racial and religious prejudice among less educated white voters, especially directed against Muslims, immigrants and African-Americans, played a much greater role in his electoral college victory than economic or trade issues.

    Despite the fact that Trump is reportedly infuriating some of his hard-right white supremacist voter base by continuing DACA approvals at the same pace as Obama (see my June 13 post), most of his immigration agenda is doing nothing to disappoint expectation of the voters whose racial and religious prejudices put Trump in the White House.

    How could anyone have guessed?

    My original comment follows:

    What Uttara Choudhury, a writer for Forbes India, has, with a great deal of justification, called Trump's "War on Immigrants"

    is now spreading to create anxiety and fear among more and more American citizens as well.

    In one of the two latest developments, The Guardian reports that an anti-Muslim group, obviously inspired by the president's attempts to ban almost 200 million Muslims in first seven and then "reduced" to six countries from entering the United States, launched "anti-Sharia" hate rallies throughout the United States on June 10.

    The Guardian writes:

    "The rallies have been organized by Act for America, which claims to be protesting about human rights violations but has been deemed an anti-Muslim hate group by the Southern Poverty Law Center. The demonstrations prompted security fears at mosques across the country and come at a time when hate crimes against Muslims are on the rise."

    Of course, the president had nothing to do with organizing these rallies, which were the work of a private group exercising its unquestioned right to free speech under the same First Amendment which it is trying to prevent American Muslims, not only immigrants, from relying on to protect their Constitutional right to freedom of religion.

    But there cannot be the slightest scintilla of doubt as to who was the inspiration behind these public manifestations of religious hatred which knows no boundaries of citizenship and does not distinguish between American and foreign citizens. As The Guardian also reports:

    "The Saturday rallies in Chicago occurred near a building developed by Donald Trump. Giant letters spelling out 'Trump' loomed on the high-rise over the more than 100 protesters...

    A small group also stood at a nearby George Washington monument, chanting, 'America First!' Some wore red hats with Trump's campaign slogan, 'Make America Great Again'."

    The Guardian also makes clear in its story that the anxiety and fear created by these Trump inspired hate demonstrations affect not only Muslim immigrants, but American citizens too:

    "Concerns within the Muslim American community have risen since the election of Donald Trump, whose campaign routinely drew upon Islamophobic comments."

    Meanwhile, in another, not by any means unrelated development, the US Department of Labor issued a June 6 statement full of threats and intimidation against employers of H-1B and other highly skilled immigrants in which the DOL directs agencies to "aggressively confront" alleged visa program "fraud and abuse".


    US Secretary of Labor Protects Americans, Directs Agencies to Aggressively Confront Visa Program Fraud and Abuse

    In other words, the US Department of Labor, which plays a crucial role in implementing visa programs for high skilled foreign workers and the Americans who employ them, is now, under the direction of the Trump administration, turning into their adversary.

    In an ominous warning to US employers who do not fall in line with the DOL's stated goal to "promote" the hiring of Americans (a goal not expressly contained in most of the statutes relating to NIV work visas, or even in many of the green card visa programs, the most notable exceptions being PERM labor certifications, and H-1B hiring by "dependent employers" or "willful violators" only - not most H-1B employers), the DOL is raising the threat of "aggressive" enforcement, including greater resort to criminal sanctions, against whatever it may see as "fraud and abuse".

    In other words, the DOL appears to be warning American employers as follows, in essence.

    "Yes, the law allows to you hire skilled foreign workers, but if you try to follow that law, you will do so at your own risk and peril."

    Reading the text of the DOL's above June 6 announcement, it is difficult in some places to tell the difference between the language of the notice and a typical Donald Trump immigrant-scapegoating campaign statement.

    The announcement includes statements such as the following, which follow a tone very different from the normally neutral and objective language that federal agencies usually use in issuing guidance or making policy announcements regarding various legal issues, immigration-related or otherwise:

    "Entities who engage in visa program fraud and abuse are breaking our laws and are harming American workers, negatively affecting Americans' ability to provide for themselves and their families."

    Any resemblance to a typical Trump campaign statement warning about the alleged dangers of all immigration, legal and illegal, skilled and unskilled, is, one can be quite sure, purely intentional.

    This is, of course, in addition to the fact that the president's avowed interest in protecting the living standards of US workers by threatening and intimidating other Americans who wish to employ skilled foreign workers according to law reeks of hypocrisy and bad faith, in the light of his budget proposals which would destroy the social safety net on which the standard of living of millions of American workers depends, while taking away their health insurance, and making severe cuts to job training programs which would make it easier for Americans to be hired in better-paying jobs.

    What is the message common to both the increase in demonstrations of open anti-Muslim hatred, fueled by Trump's inflammatory campaign rhetoric leading up to his Muslim ban executive orders and subsequent intemperate attacks on, not only U.S. federal judges who opposed these orders, but even his closest fellow anti-immigrant advisers such as A.G. Jeff Sessions, who tried to persuade him to "water down" the Muslim ban, on the one hand, and his administration's attempt to demonize American H-1B employers as purveyors of "fraud and abuse" on the other?

    Uttara Choudhury puts it in her above article as follows:

    "There's little doubt that Trump has fueled anger against minorities and people who look different."

    As her article shows in chilling detail, this can take the form of hate crimes directed against Muslims, or even non-Muslim Indians who may be mistaken for Muslims because of their attire.

    And it can also take the form of, to quote the DOL's choice of words,"aggressive confrontation" against the H-1B visa program and other high-skilled worker visas used primarily by immigrants from India and other parts of Asia.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. Roger has more than 35 years experience representing skilled and professional immigrants with work visas and green cards.

    Roger's practice is concentrated mainly on H-1B specialty worker and O-1 extraordinary ability work visas, and on skilled and professional worker green cards through PERM labor certification; and green cards through both opposite sex and same sex marriage. His email address is

    Updated 06-13-2017 at 10:34 AM by ImmigrationLawBlogs

  2. Does Trump's Alleged Obstruction of Justice in the Comey Firing Undermine His Muslim Ban Legal Defense? Roger Algase

    Does the bombshell testimony of James Comey on June 8 about the pressure that the president allegedly put on him prior to firing him in order to influence the FBI investigation of alleged illegal ties to Russia have anything to do with with the administration's attempt to defend the legality of the president's "Travel Ban" order (to use his own tweeted description of his order barring almost 200 million citizens of six almost 100 per cent Muslim countries from entering the United States)?

    For a summary of Comey's devastating testimony concerning possible obstruction of justice by Trump in trying to impede or influence the FBI investigation of his top aides, (discussed in more detail below) see:

    According to the distinguished young legal scholar Joshua Matz, a former Harvard Law Review editor, law clerk to Supreme Court Justice Anthony Kennedy, and author of an amicus brief that was filed with the 4th Circuit on behalf of a group of Constitutional law scholars, the Comey firing could have everything to do with the Muslim Ban (which is the most accurate term of all - how could banning 200 million Muslims for whatever reason be anything other than a "Muslim Ban"?) litigation.

    Why is this so? Matz explains in a May 9 article in The Guardian commenting on the president's "National Security" argument in favor of the ban as follows:

    "It's true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But surely there comes a point where reliance on this rule amounts to judicial abdication - and Trump's continuing bad faith and irregularity suggest we have crossed that Rubicon. Even if we haven't, the nature of presumptions is that they can be rebutted, and here the evidence of Trump's bad faith toward American Muslims is overwhelming."

    However, it is one thing to make a finding of presidential bad faith which is directly connected to the subject of litigation actually before the court.

    But could alleged presidential bad faith in an unrelated matter, in this case the firing of James Comey in order to stop or impede an FBI investigation into possible illegal ties with Russia by the president and/or his top officials, also be relevant to the question of whether the president acted in good faith in the Muslim ban case which is now before the Supreme Court?

    Matz, in another article written the day after the one quoted above, argues that it could be relevant.

    In a May 10 article entitled:

    Why Firing Comey Guts DOJ's Main Defense of the Muslim Ban

    Matz writes:

    "Having fired the man in charge of significant national security and intelligence policies - and having done that while that man led a criminal investigation involving foreign influence at the highest levels of the U.S. government - Trump has unquestionably forfeited any claim to a presumption of regularity or good faith.

    I expect that the judges of the Fourth Circuit Court of Appeals, and their law clerks, are paying close attention to these events. Norms of judicial rhetoric likely wouldn't permit any mention of Comey in an opinion. But it's inconceivable to me that the Comey firing won't frame their reactions to Trump's insistence that presumptions of deference compel them to uphold his Muslim ban."

    At the time when Matz wrote the above, the Muslim Ban case was still under review by the 4th Circuit, and James Comey had not yet issued his devastating Congressional testimony about Trump's overt and blatant attempt to interfere with the FBI investigation even though he did not expressly order Comey to halt it.

    A reading of the relevant statute shows why it will not be an easy task for the president and his defenders to make the words "Obstruction of Justice" disappear from the discussion of his firing of James Comey, not as a political phrase, but as a legal one.

    18 U.S.C. Section 1503 provides in relevant part:

    (a) any threatening letter or communication, influences, obstructs or impedes, or endeavors to influence, obstruct or impede, the due administration of justice, shall be punished as provided in subsection (b).

    The above makes it obvious that the statute does not require that someone actually impedes an investigation, such as by ordering the head of the FBI to drop the matter, but only that that the person "endeavors to influence" it.

    No one who has the slightest familiarity with the plain words of the English language can argue with the obvious fact that if James Comey's June 8 testimony is to be believed, the president's alleged statements to him in Oval Office conversations were, at the very minimum, attempts to influence the FBI investigation.

    As Matz's above quoted statements make clear, the heart of the administration's arguments in defense of the Muslim ban is the presumption of regularity based on the theory that the president is carrying out the normal responsibilities of his office, not only with regard to a particular alleged "National Security" finding in an immigration-related matter, but also, in his oath of office, to follow and obey the laws of this country in general, including the criminal laws of the United States.

    If the Supreme Court is faced with evidence raising very serious doubts about whether the president is in fact carrying out the above responsibilities of his office in a matter as important as this one, even if it is not directly related to the immediate issue at hand, how can the Court be expected to give the president the benefit of any presumption of regularity or good faith that normally might come with the high office that he now occupies, no matter what the subject of the litigation in question might be?

    This is not to say that the Supreme Court should refuse to consider Trump's asserted "National Security" justification for the Muslim ban on the merits, for whatever they may be worth.

    But, in the light of the Comey firing and the very serious questions of obstruction of justice by the president which it presents, any claim that the president comes into the High Court with a halo of infallibility, also known as a presumption of regularity or good faith, concerning the Muslim ban or any other matter involving presidential discretion, merely by virtue of the office which he holds, and without any regard to whether he is in fact conducting himself according to the requirements of law which govern that office, has, very arguably, been completely demolished.
    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 receive work visas and green cards without to ethnicity, religion or national origin, in the true spirit of American fairness and equality which is now under intense attack from the Trump administration.

    Roger's practice is concentrated primarily in H-1B specialty and O-1 extraordinary ability work visas; and in green cards though Labor Certification and through marriage or other immediate family relationship with U.S. citizens. His email address is

    Updated 06-09-2017 at 10:55 AM by ImmigrationLawBlogs

  3. "First They Came For the Mexicans": Trump's Attacks on Immigrants Put Democracy in Danger. Roger Algase

    The United States Holocaust Museum contains a famous poem written by the anti-Nazi pastor Martin Niemoeller (1892-1984) which reads as follows:

    "First they came for the Socialists, and I did not speak out -
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out -
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out -
    Because I was not a Jew.

    Then they came for me - and there was no one left to speak for me."

    There is another famous poem, by Emma Lazarus - one which, more than any other, defines America as the land of Freedom and Equality for all - a poem which has made and still makes America incomparably greater than any presidential campaign slogan on a baseball cap could ever possibly do - enshrined at the base of the Statue of Liberty.

    Will that poem one day before too long be "repealed and replaced" by one which reads as follows?

    "First they expelled the Mexican immigrants - and I did not speak out - Because I was not a Mexican.

    Then they banned the Muslim immigrants - and I did not speak out -
    Because I was not a Muslim.

    Then they went after the high-skilled H-1B immigrants from Asia - and I did not speak out - Because I was not an Asian high-skilled immigrant.

    Then they took away our democracy - and there was no one left who was allowed to speak out.

    Admittedly, our immigration laws give the president and the executive branch which the president controls a great deal of quasi-authoritarian power over immigration policy and enforcement.

    Even though the courts do not normally relish discussing this at any great length in their judicial opinions, the origins of this power date from the time of legislation intended to keep a different unpopular minority of that period out of the United States.

    I refer to the infamous Chinese exclusion laws, as upheld in a series of Supreme Court decisions of which the most notorious, Chae Chan Ping (1889) will forever be as much of a stain on American history as the much better known 1857 Dred Scott decision.

    This doctrine, known as the Plenary Power of the "political branches" of the government - the Executive and Congress - over immigration, is still with us today, In addition to putting decisions about whether to admit foreign citizens to the US largely, if not entirely, beyond the power of the courts to interfere with - see Kleindienst v. Mandel (1972) and Kerry v. Din (2015) it underpins broad authoritarian statues such as INA Section 212(f) which, read literally, gives the president the absolute power of a dictator over the admission of immigrants.

    The same authoritarian thinking also led to another broad statute, INA Section 274, which, again read literally, gives the federal government the power to prosecute and throw into prison anyone who resists or otherwise interferes with a policy of mass expulsion of Latino, Asian and Middle Eastern immigrants, or whatever other "enforcement" measures the president, as head of the executive branch, may choose to institute.

    In the past, in keeping with the spirit of democracy, these extremely broad, authoritarian powers have been used sparingly, with self-imposed limitations, by previous presidents.

    But this is no longer the case under our current president and his (ironically now embattled) chief immigration enforcer, Attorney General Jeff Sessions. Under this administration, the full authoritarian powers of these laws, especially regarding Section 212(f) are being tested. Increasingly, the courts are being called on to decide whether, with regard to immigration, America will continued to be governed by democratic principles, or whether this critically important area of our law and society will be run as a one-man dictatorship by executive order.

    This question is at the heart of what is at stake in the IRAP Muslim ban (because that is exactly what it is - we now have the president's own tweeted statement to confirm this) which is now before the Supreme Court.

    But this leads to a larger and even more important question. If America accepts the principle of one-man dictatorship over immigration, is there any way that authoritarian government can be kept inside this particular bottle, or, like the genie in the world famous Arab epic story Alf Laila wa Laila ("Thousand and One Nights") will the authoritarianism that pervades every aspect of the current presidency (see James Comey's June 9 testimony before Congress relating to what to all appearances amounts to obstruction of justice by the president), not to mention the president's attacks on the courts, the press, Democratic members of Congress whom he has just barred from receiving information from federal agencies, individual critics, and anyone else who stands in his way on immigration or any other issue) escape from the bottle and engulf the rest of our government and society, resulting in America's no longer being counted among the democratic countries of this world?

    Roger Algase
    Attorney at Law

    Updated 06-08-2017 at 07:10 PM by ImmigrationLawBlogs

  4. After London Attack, Trump Calls for End to "Political Correctness" (a/k/a Constitutional Freedoms). Roger Algase

    Update, June 5 at 10:32 am:

    Did the president just guarantee that he will lose his attempt in the U.S. Supreme Court to have his six almost 100 percent Muslim countries entry ban reinstated?

    POLITICO reports that on the morning of June 5, Trump blasted away at his own Justice Department for not staying with the original, seven country version of his so-called "Travel Ban" (which is not really a travel ban - the 180 million affected Middle Eastern and African Muslims are perfectly free to travel wherever they wish - just not to the US!)

    Instead, Trump blamed the DOJ for substituting the "watered down, politically correct" six country version (which Trump himself signed!) instead of the original one, which federal court after federal found showed an even clearer intent to discriminate against Muslims as a religion than the current version which is now before the U.S. Supreme Court.

    Trump has now destroyed once and for all any possible argument by the DOJ before the High Court that the six-country ban should only be considered on its face, and that his own statements should not be considered as relevant in determining the ban order's real intent.

    The artificial and contrived argument that there should be a distinction of some sort between Trump's actions as president, and his campaign statements prior to the election has now totally collapsed - destroyed by: you guessed it, Donald Trump, president of the United States, himself.

    The statement in which Trump resoundingly endorsed the original version of the travel ban, with all of its egregious violations of Constitutional rights of both Muslim and non-Muslim U.S. Citizens and residents was made on June 4, 2017.

    Trump was inaugurated as president on January 20, 2017 almost six months before.

    The POLITICO story is at:

    My original comment follows:

    Donald Trump has lost no time in exploiting the suffering of the victims and their families in the horrific London terror attacks for which the inhuman monsters known as ISIS have now claimed responsibility.

    The president's initial response, issued in a demagogic tweet on June 3, was to call for the courts to "give us back our rights" and reinstate the "Travel Ban" (more correctly described as what is obviously intended to be an indefinite ban on entry to the US - no one with even minimal good faith could seriously argue that the ban is really intended to expire after 90 days) by almost 200 million Muslims from six countries, none of which has ever launched or sponsored a terror attack against the US.

    What "rights" is the president asking the courts to give back to him?

    As the majority opinion of 4th Circuit Chief Judge Roger Gregory makes clear, the "rights" that Trump is so anxious to "get back" amount to nothing more than an autocrat's power to bar almost 200 million members of a major world religion from entering the US, without the slightest evidence that they actually have any connection with or sympathy for the comparative handful of terrorist madmen who are responsible for despicable attacks such as the ones which have recently taken place in London and Manchester.

    In Trump's arrogation of exclusive one man power to himself to ban the entire population of six countries where almost 100 percent of the citizens belong to this one religion, one can only be reminded of the power of the Roman emperor Tiberius, who almost exactly 2,000 years ago in 19 A.D. expelled the Jews (and followers of a different Isis - the Egyptian goddess) from that city, purely on his own say so.

    In that tweet, Trump also stated that that he needed the "Travel Ban" as an "extra layer of protection" despite that fact that his call for a total ban on Muslims from everywhere in the world dates back to December, 2015, long before the attacks in England took place, and amid what one federal judge recently described as "mountainous" evidence that the ban was part of a longstanding Islamophobic political agenda, not a national security related one.

    One also has to ask what "layer of protection" the president is offering America by pursuing an agenda of religious discrimination and "animosity" (to use Judge Gregory's term) which can only play into the hands of ISIS by giving it a powerful recruiting tool, according to experts.

    In an even more troubling message for the future of America's democracy, on the same day, the president issued another tweet calling for an end to "political correctness" in connection with the London attack. For the story on both tweets, see:

    What did the president mean in this context by political correctness? He did not say.

    But judging by his behavior in the Muslim ban litigation, where he has tried to bludgeon the courts into accepting a thin "national security" pretext for an obviously religiously motivated ban, and has launched vicious personal attacks on judges who tried to uphold the truth; and by his ominous campaign statements that American Muslims should be subjected to surveillance and multiple databases, while American citizens charged with terror should be sent to Guantanamo, there is good reason to believe that the "political correctness" that our nation's 45th president wants to put an end to means the 1st, 5th and 14th amendments to the Constitution of the United States of America.

    In other words, when the president rails against "political correctness", is his real objective to abolish the guarantees of free exercise of religion, due process of law and equal protection of the law for Muslim U.S. citizens who would be affected by his six Muslim country entry ban, as alleged in the 4th and 9th Circuit lawsuits?

    And if those basic, "politically correct" Constitutional freedoms are taken away from Muslim Americans, how much longer will it be before all other Americans lose these essential rights of a free and democratic society too?
    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 high skilled and employment-based immigrants receive work visas and green cards.

    Roger's practice is concentrated on H-1B, O-1 and J-1 work visas, and on green cards through labor certification and through marriage. His email address is

    Updated 06-05-2017 at 09:51 AM by ImmigrationLawBlogs

  5. Trump Asks Supreme Court to Reinstate Muslim Ban. Back to 19th Century Racial Exclusion Laws and Forward to 21st Century Dictatorship? Roger Algase

    Update: June 3, at 10:22 am

    For a powerful and well-documented article showing beyond any question that Trump's Muslim ban is only the first step toward a large scale rollback of immigration from all parts of the world outside Europe, in a major step backward toward the infamous "Nordics" only Johnson Reed Immigration Act of 1924 (which Adolf Hitler also wrote about admiringly in Mein Kampf), orchestrated by the president's white supremacist top immigration advisers, Stephen Bannon, Jeff Sessions and Stephen Miller, see Jamelle Boule writing in Slate on February 6:

    Government by White Nationalism Is Upon Us

    For a link to the full article, see:

    My original comment appears below:

    In a dramatic move, the Trump administration asked the Supreme Court late on June 1 to reinstate the executive order banning approximately 180 million citizens of six almost 100 per cent Muslim countries from entering the US "temporarily" while the administration develops new screening methods.

    While the executive order only contemplates a 90-day entry ban, no one seriously believes, based on the president's past statements and those of his Congressional and administration supporters, that the new "screening methods" will take only 90 days to develop.

    Nor is there any indication that any such methods have been developed or proposed by the administration in the more than 120 days which have elapsed since the president's original seven Muslim country entry ban order was issued near the end of January, 2017.

    This is, even though, to the best of my understanding, no court has blocked the parts of either the first or second presidential orders directing the administration to develop such enhanced screening methods.

    Therefore, it is neither unreasonable nor unfair to assume that the "temporary" entry ban (often misleadingly called a "travel ban" in the media - the affected people are free to travel anywhere they wish - just not to the United States!) is meant to last indefinitely - in all probability as long as Donald Trump remains president of the United States.

    As several other commentators have also pointed out, the immediate issue before the High Court will most likely be to interpret the meaning of "bad faith" in an administrative decision or action denying a visa or otherwise refusing to admit one or more foreign citizens to the US.

    As other commentators have also mentioned, this issue derives from the doctrine set forth in Kleindienst v. Mandel (1972) that a decision to deny admission to the US is beyond court review if it is "facially legitimate and bona fide"; and the statement of Justice Kennedy in Kerry v. Din (2015) that, for the courts to intervene, there must be an "affirmative showing of bad faith".

    At the outset, since both of these cases involved immigrant visa denials to one person only, it is unlikely that the Justices in either of the above cases were thinking of developing a standard which would apply to exclusion of the entire citizenry of at least half a dozen countries, affecting almost 200 million people. Donald Trump had not yet been elected president, or even proposed a worldwide ban on Muslims coming to the US at the time of either of the above decisions.

    Therefore, neither Mandel nor Din might be an appropriate lens to look through in viewing the issues presented in the 4th Circuit's six Muslim country entry ban decision. But there is a precedent involving issues very similar to the president's entry ban affecting some 180 million Muslims.

    This precedent is a shameful one, just as much as a stain on American history as the infamous 1857 Dred Scott decision holding that people of African descent could never be U.S. citizens. I refer to the Chinese exclusion laws beginning from 1882 and lasting well into the 20th Century.

    Just as is the case with the six Muslim country entry ban and its predecessor seven-country ban, the Chinese exclusion laws did not specifically mention race (or, in the case of the Muslim country bans, religion). Instead, just as with Trumps's Muslim country ban executive orders were to do 135 years after the original Chinese exclusion law in 1885, they were based on nationality - i.e. citizens of China.

    Persons of Chinese ancestry in the entire rest of the world outside of China were not affected - that is, until the exclusion policy was later extended by Congress, first to Japan, and then to the entire rest of Asia in the early part of the 20th century - just as Trump's executive orders also contemplate extending the ban on entry to other countries that allegedly do not, in the president's sole determination, provide enough information about their citizens to the US in order to allow for "effective" screening.

    If one reads the six-country ban order and its predecessor seven country order fully, it is easy to see that the listed countries are merely the low hanging fruit. If the ban is upheld in court, other countries can and most likely will be added to the banned list, using the same transparent pretext that the ban is only "temporary", pending "improved" screening procedures.

    Which countries might these be? No one knows, but, based on statements that Trump's two top immigration advisers, Bannon and Sessions, have made, it is a safe bet that, in the spirit of the 1924 "Nordics" only Johnson-Reed Immigration Act which these two high administration officials have referred to favorably in quite recent statements (within the past two years), any additional banned countries will be from outside Europe.

    But to return to the Chinese exclusion laws, just as Trump and other supporters of the six Muslim country ban's alleged legality are now arguing that the latest version of the ban does not affect everyone in the six listed countries, because there are a number of waivers and exemptions (mainly those forced upon the administration by federal judges who blocked the original seven country version of the ban - sua sponte by the Trump administration these changes were not), the Chinese exclusion laws also contained some exceptions.

    The biggest exception, which must have exempted potentially millions of Chinese citizens in that vast country from the ban, was that the exclusion laws only applied to Chinese "laborers", not to "merchants".

    But did anyone argue that these laws were not racially motivated. just because they (initially) affected only one country in the entire world - China - and because possibly millions of citizens of that country were exempted? So far as I am aware, no one ever made such an absurd and hypocritical argument.

    To the contrary, in the notorious decision in Chae Chan Ping (1889) which is now known and will be forever known to legal scholars and historians as the "Chinese Exclusion Case", and which rivals the notorious 1857 Dred Scott decision itself in infamy, the Supreme Court expressly determined that the original Chinese exclusion law was racially motivated, and the court upheld that law mainly for that reason!

    At least in those days, America's politicians and judges were honest about the motives for banning immigrants based on race or religion, and they did not make any bones about it or pretend to rely on empty pretexts instead.

    With the Muslim country entry ban executive orders, is the Trump administration taking America back to the spirit of the Chinese exclusion laws, only without the same honesty as to the real motivation? For the above reasons, a "no" answer to the above question would be a very tough argument indeed.

    Having commented on the past, I will now turn to the question of what will be in store for America's future if the six-Muslim country entry ban is upheld by the Supreme Court.

    As I mentioned at the beginning of this comment, the likely standard that the Supreme Court will use is whether there is "an affirmative showing of bad faith" in the Muslim country entry ban order.

    No one will dispute that this is a very high bar to meet, just as no one will argue that INA Section 212(f) does not give the president very broad power to exclude almost any immigrants he wants to, for almost any reason, from the US. 4th Circuit Chief Judge Roger Gregory recognized this in his decision, and it is a forgone conclusion that the Supreme Court will mention this section too, whichever way it decides.

    However, as I also mention above, when Justice Kennedy formulated this standard in Kerry v. Din, it is highly unlikely that anyone could have imagined that the Supreme Court, only two years later, would be dealing with a presidential attempt to ban almost 200 million members (for starters) of a major world religion from America's shores. In this radically different context, Justice Kennedy's standard needs to be looked at from a larger perspective than merely that of whether, as in Din, (and in Din's predecessor decision, Mandel) the government adequately explained the reasons for a visa denial to a single individual applicant.

    In the case of the six Muslim country ban order, the president claims that "national security" is the sole reason for the ban, despite the overwhelming evidence of egregious bad faith, extended almost to the point of making a mockery of the entire judicial system, and the role of the courts as and independent branch of the government, that is listed at length in the 4th Circuit's decision and in other court decisions dealing with this issue showing beyond any rational doubt that the real reason for the ban was religious discrimination against Muslims.

    As the these court decisions all agree in pointing out, a very large part of the evidence that the real reason for the ban as religious animosity, not national security, comes out of the president's own mouth, and while, much of it relates to campaign statements, it is easy to make the case that the president's actions after being elected and assuming office are entirely consistent with the worst and most blatant of his numerous anti-Muslim campaign statements, as recited in these court decisions.

    It is not necessary to repeat this long list here, but to give just one example, Trump appointed his now disgraced national security adviser Michael Flynn, who called Islam a "cancer" rather than a real religion after the election, not during the campaign. The same is true with regard to senior presidential adviser Stephen Bannon, who has stated that the "West" (i.e. white Europe) is in a "War of Civilizations" with the Muslim world.

    The argument being put forth by the DOJ and other defenders of the ban order that Trump's wild, openly bigoted campaign statements against Muslims (such as for example: "Islam hates us " - recalling horrible memories of Joseph Goebbels: "Die Juden sind unser Unglueck"), which shocked and were condemned by many other Republican leaders at the time, (including now Vice-President Mike Pence) should be ignored and forgotten is more than disingenuous - it is Orwellian -it is asking the courts to relegate the real reasons for the ban order, coming out of the president's own mouth as I have mentioned, to the "Memory Hole" described in the novel 1984.

    The Justice Department is, however, not only asking the courts to ignore and disregard the obvious truth of the reasons for the ban order, but it is, by arguing in favor of almost unlimited presidential power to ban immigrants merely by saying the two magic words "national security", claiming that the president alone has the power to determine what the truth about his motivations for the ban order is.

    This goes far beyond merely looking backward to the Chinese exclusion laws of the past. Instead, it points toward a Brave New totalitarian world of the future, where the president has not only the sole power to determine the law regarding entry of immigrants, but also what is true and what is false.

    Is there anyone who is naive enough to think that if the Supreme Court bestows such enormous power on a single individual, this power will be used only against immigrants in the future, and not as a means to extinguish freedom and democracy for the American people as well?
    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 receive work visas and green cards.

    Roger's email address is

    Updated 06-03-2017 at 09:28 AM by ImmigrationLawBlogs

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