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  1. New Sup. Ct. Choice Views President As Emperor. This May Protect Trump From Mueller, But Be Devastating For Immigrants - And Democracy. Roger Algase

    It should be easy for even a casual observer of the Supreme Court and of what passes for the "Rule of Law" in the Trump administration to see why Trump picked D.C. Circuit Judge Brett Kavanaugh for the Supreme Court stop made vacant by Justice Anthony Kennedy's retirement. The most likely immediate reason for this appointment can be summed up in two words: Robert Mueller.

    As Slate's legal analyst Dahlia Lithwick writes on July 10:

    "...Kavanaugh has been extraordinarily transparent - perhaps even too transparent - about his affinity for broad constructions of executive power. Nevertheless, the president - whose administration is currently the subject of a wide-ranging criminal investigation - somehow chose the judge who's most likely to endorse the Trumpian view that this is all a massive with hunt, this despite the gamble that Kavanaugh's selection makes him [Trump] look guilty."

    https://slate.com/news-and-politics/...ts-a-gift.html

    However, the issue involved in Kavanaugh's selection goes far beyond what Lithwick pungently - and accurately - describes as follows:

    "The president picked a guy he hopes will hand him a get-out-of-jail-free-card."

    The broader issue is what having Kavanaugh, with his view of virtually unlimited presidential power, on the High Court could mean for America's immigration system - especially the officially color-blind, race and religion neutral one which America has had for the past half century and which Trump, with the support of his two top immigration advisers and enforcers, Stephen Miller and Jeff Sessions, is now fighting so furiously to overturn.

    And beyond that, America's democracy itself could be in acute danger from a president supported by a Supreme Court majority which may now be even closer to putting that president completely above the law, not only with respect to immigration policy, but with respect to to our Constitution, Separation of Powers and our entire system of government.

    To illustrate how confused Kavanaugh appears to be about the difference between a US president and an emperor, here is a quote (from Lithwick's article) from his dissent in a 2011 D.C. Circuit Court case involving the Affordable Care Act:

    "Under the Constitution...the President may decline to enforce a statute that regulates private individuals when the President deems that statute unconstitutional, even if a court has held or would hold that statute constitutional."

    George Mason University law professor Ilya Somin writes the following about Trump's choice of Kavanaugh on July 9:

    "I am far less enthusiastic about Judge Kavanaugh's support for broad executive power in the national security realm. History shows that excessive judicial deference in this field has led to serious abuses. I am also skeptical of Kavanaugh's advocacy of the 'unitary executive' theory - the idea that nearly all executive power must be concentrated in the hands of the president."

    Professor Somin continues:

    "This theory was sound in a period where the scope of executive power was confined to its comparatively narrow original bounds. But it is both dangerous and contrary to the original meaning to concentrate so much authority in one person's hands in an era when the executive wields vastly greater power than was granted at the time of the founding."

    https://reason.com/volokh/2018/07/09...on-the-kavanau

    How might this imperial view of executive power play out in the area of immigration policy in the "Donald Trump Era", especially now that the Supreme Court has just, in effect, ruled that it is acceptable for the president to use "national security" as a fig leaf to cover his program of overt religious discrimination against immigrants seeking to enter the US in its latest Muslim Ban decision?

    What effect would this doctrine of concentrating such great power in the hands of a single Leader have in the case of a president who has criticized America's entire immigration system as the "dumbest" in the world and has threatened to "close up our country" against immigrants from Central America and other places which he blasts as "shithole countries" which are "not like Norway"?

    What happens, for example, if the president, in exercise of this imperial executive power, decides to stop issuing legal visas to immigrants seeking entry in immigration categories which he doesn't happen to favor and is trying to force Congress to abolish, but which are still valid according to the law of the land?

    I refer specifically to the extended family immigration and Diversity visas which Trump obviously hates and has denounced in speech after speech (because they permit immigrants with darker skins than Trump prefers to come to the US), but which cannot by any rational argument be shown to pose the slightest danger to national security.

    I will explore this and other similar questions about the prospect of uncontrolled one-man presidential power over immigration, and its relation to the continued viability of the United States as a democracy, in further detail in a forthcoming comment.
    _________________________
    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 obtain work visas and green cards. His practice focuses on specialty occupation (H-1B) and extraordinary ability (O-1) work visas; and green cards through Labor Certification, and though marriage or other family relationships.

    Roger also writes about immigration law from the standpoints of racial equality, equal justice before the law and fundamental human rights, all of which are now under unprecedented attack. Roger's email address is algaselex@gmail.com








    Updated 07-12-2018 at 10:59 AM by ImmigrationLawBlogs

  2. Forcing 1-Year-Old Babies to Defend Themselves in Immigration Court is Beyond Cruel and Insane. It Might be Crime Against Humanity. Roger Algase

    The following comment has been expanded and updated as of July 9 at 8:59 am:

    Every president leaves behind a legacy, or at least is remembered for one or a very few things in particular.

    Donald Trump seems to be doing everything possible to make sure that, more than any other president in our history (since he did not start this travesty, but is instead putting previous abuses on steroids) he will be remembered, not only as the president who was so obsessed with keeping Hispanic and other non-white immigrants out of the United States that he tore more than 2,000 young children from their parents and put them in shackles, cages, empty office buildings and desert tents, but the president who forced one-year old children to bone up on US immigration law sufficiently to be able to defend themselves before judges in deportation hearings.

    And, as thinkprogress.org reports, his administration is doing so after, in many cases, the parents of the children involved have already agreed to accept deportation after being lied to by DHS officers who told them that once deported, they would be reunited with their children. It now appears that many of these deported Central American parents might never be reunited with or see their children again.

    https://thinkprogress.org/migrant-to...-8474ea86129d/

    The above horrifying report raises a perfectly legitimate question as to whether "removal hearings" under the above conditions deserve to be called judicial or legal proceedings at all, at least as these have been understood during the 5,000 years during which proceedings under the name of law have been recorded throughout human history, beginning with ancient Egypt and Babylonia

    https://www.britannica.com/topic/cuneiform-law

    or whether America's current immigration court proceedings involving young children should more properly be called a crime against humanity, as a June 23 article in the Harvard Crimson suggests. See:

    Should We Send Trump to the Hague?


    https://www.thecrimson.com/column/af...rump-to-hague/

    For more about the ramifications of Trump's child separation policy, which has now been officially cancelled, but which is still causing what may be irreparable damage to many Central American and other non-white immigrant children and their families, see The Guardian, June 5:

    https://www.theguardian.com/us-news/...n-from-parents

    I will leave it to Donald Trump. Jeff Sessions and Stephen Miller, the architects of this regime's immigration agenda, to answer this question.

    However, while they are figuring this out, it is also important to note that these terrible abuses, this cruel mockery of any concept that has ever gone under the name of Rule of Law, are not isolated policy decisions. They are part of a larger picture of a president, and his administration, who are determined to roll back a half century of progress toward racial justice and equal opportunity for immigrants to America from all parts of the world, not just white Europe, as was the case under the openly bigoted 1924 "Nordics-only" national origins immigration act which Sessions had such high praise for in his immigration "Handbook" for Congressional Republicans authored in January, 2015, only three and a half years ago.

    The crying, screaming babies and other terrified young children who are being dragged into immigration court after being torn away from parents whom they might never see again and told by the Trump regime that they have to represent themselves in front of often confused immigration judges, who could never have imagined while they were in law school that they would ever have to preside over such a travesty, are only part of a larger picture.

    This larger picture also includes potentially hundreds of thousands, if not millions, of other immigrant families who are facing the prospect of being split up by Trumps' assault on legal immigration from countries which are "not like Norway" - his attempt to abolish extended family immigration and the Diversity Visa; his revocation of TPS for hundreds of thousands of immigrants who have been living in America peacefully and productively for many years but lack the president's essential immigration requirement of having a light-colored skin; his DACA cancellation; his Muslim Ban which has just been upheld by a Supreme Court which is now on the point of becoming even more right wing and authoritarian as we speak; and even Trump's hypocritical attempts to make employment-based H-1B and other legal visas and green cards much more difficult - unless, of course, the sponsored immigrants happen to be working at Mar-a-Lago.

    And the crying, screaming devastated young children who are now being dragged into immigration court without parents, without lawyers (in many cases) and without the faintest idea of what is going on or ability to stand up for themselves, are only the beginning of a movement which, based on Trump's campaign statements and those of many of the anti-immigrant zealots who helped him gain the presidency despite losing the popular vote to Hillary Clinton by almost 3 million votes, could very soon lead to millions of American-born children - and adults, losing their birthright US citizenship - again for having the "wrong" skin color.

    https://www.cnn.com/2018/04/18/polit...nia/index.html

    When this happens, as it very likely will begin to if Trump survives the Mueller investigation into his assorted alleged scandals, and especially if he wins another term (or, not inconceivably, becomes president for life under our fragile and easily overturned constitution), the screaming babies now being hauled into his deportation courts will very possibly not be the only brown-skinned people in America who may have quite a lot to cry about.
    _______________________
    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 obtain work visas and green cards. His practice is focused on work visas through specialty occupation (H-1B) and extraordinary ability (O-1), as well as green cards through labor certification and through marriage or other family relationships.

    Roger also writes about immigration law from the standpoint of racial equality, equal justice before the law and fundamental human rights, all of which are now under unprecedented attack. His email address is algaselex@gmail.com

    Updated 07-12-2018 at 10:54 AM by ImmigrationLawBlogs

  3. Supreme Court Says Foreign Nationals Have No Due Process Rights Here. By Matt O'Brien

    Introductory note. I didn't write this article. Although I think it is correct to some extent, the author seems to have ignored our treaty obligations not to send aliens to countries where they will be persecuted or tortured.

    Contrary to what the liberal media and open-borders advocates say, immigrants are not owed same constitutional protections as regular Americans
    July 5, 2018


    President Donald Trump recently suggested that illegal aliens should be sent back to their countries of origin without hearings and the years of litigation that often follow.

    He branded the current process, which permits illegal aliens to repeatedly contest orders of removal, as “a mockery to good immigration policy and law and order.”

    The mainstream media wasted no time in characterizing his suggestion as a “push to end due process for illegal immigrants.” And multiple news outlets made all manner of wild claims about the so-called rights of illegal aliens. But once again, in an effort to portray the chief executive as a xenophobe, the open-borders lobby has gotten its facts backward.

    Trump is actually right on the mark. Much of the current legal framework for removing illegal aliens from the United States consists of badly reasoned federal district-court decisions, ridiculous settlement agreements, and politically motivated policy decisions.

    The open-borders lobby and its handmaidens in the mainstream media have consistently represented this hodgepodge as a clear articulation of “affirmative rights.”

    But that representation is misleading.

    Illegal aliens are entitled to considerably less immigration due process than their advocates would have us believe.

    And the Supreme Court has been remarkably consistent on this point over the years:

    It is not within the province of the courts to order the admission of foreigners who have no formal, legal connection to the United States. "As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." Murray's Lessee v. Hoboken Land and Improvement Co.; Hilton v. Merritt)

    "It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self- preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe." (Ekiu v. United States)

    The United States need only provide an alien with a judicial trial when charging them with a crime and seeking a punitive sentence. (Wong Wing v. United States)

    "Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien." (Knauff v. Shaughnessy)

    Unadmitted, nonresident aliens have no right of entry to the United States as non-immigrants, or otherwise. (Kleindienst v. Mandel)

    Read more at https://www.lifezette.com/polizette/...s-rights-here/



    About the author. Matt O'Brien is the former chief of the national security division within the fraud-detection and national-security directorate at the U.S. Citizenship and Immigration Services (CIS). He has also served as U.S. Immigration and Customs Enforcement’s assistant chief counsel in the New York District. He is currently director of research at the Federation for American Immigration Reform (FAIR).

    Updated 07-08-2018 at 01:17 PM by ImmigrationLawBlogs

  4. There's a better response to abuse than abolishing ICE. By Nolan Rappaport



    © Getty Images

    Sen. Kirsten Gillibrand (D-N.Y.) has brought the campaign to abolish ICE into the mainstream by adding her support to the cause. She is a prominent Democrat who is a possible 2020 presidential contender. Her support may encourage more high-profile politicians to back the idea.

    President Donald Trump, however, is sure that ICE is not going to be abolished:



    In In any case, it wouldn’t accomplish anything to abolish ICE.

    ICE has two separate divisions, Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI).
    ERO enforces the nation’s immigration laws. It identifies, arrests, and removes deportable aliens.

    Reasons for abolishing ICE


    Gillibrand has said:

    "I believe that (ICE) has become a deportation force … and that's why I believe you should get rid of it.”

    She also has said:

    “We believe that we should protect families that need our help, and that is not what ICE is doing today, and that’s why I believe you should get rid of it, start over, reimagine it, and build something that actually works.”

    She seems to be referring to ERO, which can be described as a “deportation force.” It is not apparent why she thinks that is a reason to abolish it, or why she thinks it should be protecting families who need our help.


    Rep. Mark Pocan (D-Wis.) has said, ICE is “hunting down and tearing apart families.”


    The Immigration and Nationality Act has provisions that provide relief from deportation, but none that provide a blanket waiver for deportable aliens who have families.

    Read more at http://thehill.com/opinion/immigrati...abolishing-ice

    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.






    Updated 07-07-2018 at 12:28 AM by ImmigrationLawBlogs

  5. Trump Defends White Supremacist Immigration Agenda by Saying it is Needed to Protect US Jobs - Except at Mar-a-Lago. Roger Algase

    As he has claimed countless times, Donald Trump's main justification for his attacks on non-white legal immigration (when he is not busy stigmatizing and vilifying immigrants from Central America, Africa, the Middle East and other "shithole countries" as "criminals", "terrorists" and "MS-13 gang members") is that he wants to move America toward a system of "merit-based" immigration (to be accomplished, evidently, through sending an unprecedented number of H-1B, O-1 and other "merit-based" skilled immigrant petition RFE's and denial notices) in order to protect the jobs and wages of lower-skilled American workers.

    But "putting America first" in terms of immigration does not seem to apply when Trump needs more foreign waiters and gardeners at Mar-a-Lago or his other resorts, as the Washington Post reports on July 5. See:

    Trump's Mar-a-Lago Club in Florida seeks to hire 40 foreign workers

    (I don't have a link - please access through Google)

    Therefore, what is the real purpose of Trump's immigration agenda? Eugene Robinson answers this in his own July 5 Washington Post comment:

    Trump can't make America white again

    (Also available through Google.)

    However, if, as Robinson's title argues, Trump can't make America white again through immigration policy, it won't be though any lack of trying.

    At this point, I will interject a personal note: I am often asked by well-meaning friends or colleagues: why focus so much on the racism and authoritarianism in Donald Trump's immigration agenda?

    OK, they tell me, let's concede that the guy is a racist who has little or no respect for democratic principles and is only interested in acquiring more power through exploiting prejudice against immigrants who are not from "countries like Norway."

    Now that we agree on that, isn't it time to get down to the nuts and bolts of immigration details? Aren't there tweaks to EB-5 that we need to talk about, along with the latest immigration court statistics, parsing of USCIS guidance on the definition of an H-1B specialty occupation (especially important to my own clientele), and many other constantly changing immigration details that lawyers need to deal with on a day-to-day basis, along with the broader policy issues?

    My answer would be that these details are important, but focusing on them without considering the broader Trump regime's white supremacist policy goals that motivate them would be a little like the old joke about asking Mrs. Lincoln whether, aside from what happened to her husband, she liked watching the play.

    With the above comment, I will go ahead with a discussion of Eugene Robinson's piece. See also, WP Republican columnist Jennifer Rubin (July 5):

    Trump's racist views have not gone unnoticed:

    https://www.sfgate.com/opinion/artic...d-13051061.php

    To be continued.

    Updated 07-06-2018 at 12:51 PM by ImmigrationLawBlogs

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