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  1. The days of abdicating our duty to enforce immigration laws are over. By Nolan Rappaport

    © Getty

    On May 11, 2017, Attorney General Jeff Sessions made an appearance before Customs and Border Protection officers at the U.S.-Mexico border to announce the issuance of new guidance to federal prosecutors on criminal immigration enforcement.

    It is here, along this border, he said, that transnational gangs like MS-13and international cartels flood our country with drugs. They leave death and violence in their wake. “And it is here that criminal aliens and the coyotes and the document-forgers seek to overthrow our system of lawful immigration.”

    “I am here to tell you, the brave men and women of Customs and Border Protection: we hear you and we have your back.”

    The president has made enforcement of our immigration laws a priority, and we are seeing the results already. Illegal crossings dropped by 40 percent from January to February of this year, and last month, we saw a 72 percent drop compared to the month before the president was inaugurated. This is the lowest monthly figure in the last 17 years.

    It is “the Trump era.” The days of abdicating our duty to enforce the immigration laws are over.

    But what are his real intentions?

    According to Frank Sharry, one of the nation’s leading liberal spokespersons for immigration reform:

    “Attorney General Sessions is grandstanding at the border in an attempt to look tough and scare immigrants. It’s yet another example of the Trump administration treating all immigrants as threats and as criminals. This is the smokescreen they use to justify their efforts to deport millions, to keep people out of the country, and, ultimately, to try and remake the racial and ethnic composition of America.”

    Sharry’s accusations seem to be based on what he thinks of Sessions, not on what Sessions is doing, which in this case is just prioritizing the prosecution of criminal immigration violations.


    Published originally on The Hill.

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

  2. Could Misrepresenting the Purpose of Trump's Muslim Ban Order be Grounds for Impeachment as a Fraud Upon the Court? Roger Algase

    On the afternoon of May 13, the Washington Post published an oped opinion by Harvard Law School professor Laurence Tribe, one of America's best known and most highly respected legal scholars, calling for Donald Trump's impeachment because of his alleged obstruction of justice by firing FBI Director James Comey.

    According to Professor Tribe, Trump's allegedly "phony justifications for the firing", in order to conceal the real reason for that action, namely impeding the investigation into alleged illegal ties with Russia by Trump or his top aides, were among the actions that, In Tribe's words, 'rise to the level of 'obstruction of justice'".

    See: Laurence H. Tribe: Trump must be impeached. Here's why.

    (I do not have a direct link to this article. Interested readers can go to Google.)

    While Professor Tribe did not mention anything about Trump's executive orders or other immigration actions, an additional possible ground for impeachment, based on similar reasoning, might very well be found in the claim made before the 4th Circuit Court of Appeals by Department of Justice Lawyers at Trump's direction to the effect that the president's latest executive order barring 100 million or more citizens of six almost 100 per cent Muslim countries from entering the United States, solely because of their nationality, was not a "Muslim ban", but was allegedly issued for valid national security reasons.

    See: ABA Bar Journal:

    DOJ lawyer tells 4th Circuit that Trump's travel order 'is not a Muslim ban'

    As I have pointed out in previous recent Immigration Daily comments on this issue, aside from the fact that numerous experts in the field have challenged the genuineness of the purported national security justification for the entry ban,

    the Trump administration has engaged in egregious bad faith by claiming a national security justification for the ban in the face of what what Virginia Attorney General Mark Herring (no connection with the plaintiff in the 3rd Circuit case discussed below) has aptly called "a mountain of evidence" that the entry ban was motivated by Trump's hostility against Muslims and the Muslim religion.

    Trump has said and done almost everything that he can attack Muslim immigrants, thereby also impeding the free exercise of religion by Muslim US citizens guaranteed under the 14th Amendment. He has done this both as a candidate and after he became president.

    See my recent comments on Trump's December 7, 2015 call for a worldwide ban on entry to the US by Muslim from any country, a proposal which remained on his official website for the next 17 months, right up until May 8, 2017, when it was suddenly removed shortly after the 4th Circuit oral argument!

    However, evidence that Trump's seven and six country entry bans were motivated by extreme animosity toward Muslims and their religion is not just based on one speech. The entire history of these two executive orders, comprising statements and actions that Trump has taken after becoming president as well as before, is laid out in a damning April 19 report by the highly respected Brennan Center for Justice at the New York University School of Law called:

    The Islamophobic Administration

    No one who reads this report with an objective and unbiased mind can possibly doubt that Trump's entry ban orders were directed against at least 100 million Muslims because of their religion, not because of any genuine national security concerns.

    The introduction to the report lists five ways, including but not limited to the Muslim bans themselves, in which the Trump administration:

    "through both speech and policy" has been "tangibly harming the American Muslim community".

    The report lists these five ways:

    "the use of anti-Muslim rhetoric; the elevation of Islamophobic staff members to key positions in the White House; the ban on visitors from seven Muslim-majority countries from entering the country; the goal of making vetting procedures 'extreme' for potential visitors and immigrants; and a lack of response to the rise in hate crimes targeted at Muslims and other groups."

    Therefore, there is at least a plausible argument that by instructing his lawyers to argue before the Circuit Court judges that his executive order was "not a Muslim ban" Trump might have directed these lawyers to attempt a fraud upon the court by misrepresenting the real motivation for the six country ban.

    In a 2005 3rd Circuit Court of Appeals case, Herring v. U.S., 424 F.3rd 384, cert. denied 547 U.S. 1123, the federal government was accused of participating in a fraud upon the court by allegedly using bogus national security grounds to withhold evidence which could have led to a heavier judgment against it in an air accident case than the amount which the plaintiffs eventually settled for.

    Even though the government was ultimately successful in defending against fraud upon the court charges in that case, the Court discussed the elements of this form of misconduct which could arguably have a great deal in common with the Trump administration's conduct in the 4th Circuit entry ban case, and possibly other pending federal court actions involving his entry ban executive orders as well - enough resemblances to be worth consideration by a Congressional impeachment panel.

    The Herring case involved a US military plane crash which had taken place in 1948 (almost 60 years before the 3rd Circuit's above decision!) in which the lead plaintiff's father, a civil engineer aboard the plane, had been killed. The plaintiff's mother and two other widows had sued the United States under the Tort Claims Act, but had not been able to gain access to Air Force documents relating to the crash because the government had claimed that they were privileged, because the plane was allegedly on a highly secret mission and that making the report of the crash available would compromise national security.

    As a result, and after going all the way up to the Supreme Court, which remanded the case to the District Court in U.S, v. Reynolds, 345 US 1 (1953) for further fact finding in which the government was ordered to produce the report so that the court could look at it and decide whether the claim of privilege was valid, but still refused to produce it the report, the plaintiffs finally settled the case for less than the full amount of their claim.

    In 2000, the lead plaintiff found out that the government had declassified the report in question, and she and the other plaintiffs then brought an action to vacate the settlement and reopen the case on the grounds that by claiming privilege with respect to the crash report, the government had committed a fraud upon the court.

    In the new lawsuit, the plaintiffs contended that the declassified report did not contain anything which would have revealed military secrets or compromised national security, as the government had claimed it did in the original lawsuit a half century before.

    After reviewing the now declassified report, the 3rd Circuit determined that there was in fact military information in the report which justified the government in asserting privilege, and that therefore the claim of fraud upon the court failed. The lawsuit to reopen the settlement decision was dismissed.

    Obviously, there are differences between the above case and the current litigation in the 4th Circuit and other federal courts over the legality of Trump's Muslim ban executive order. In the current litigation there is no claim of government privilege based on secrecy. Nor is there any mystery about what the alleged justification that the president is claiming for the executive order is, since the reasons for issuing the president's order are set forth in full detail in the order itself.

    But the Herring case, as well as the 1953 Supreme Court decision in the original lawsuit remanding the case to the District Court for further fact finding which was quoted at length in the 2005 3rd Circuit decision, both stand for the proposition that the courts do not have to accept the federal government's reasons for taking or refusing to take certain actions, even when a claim of national security is involved, if the national security claim is made with intent to deceive.

    In the Herring case, the effect of the government's alleged deceptive claim of privilege on national security grounds was to induce the plaintiffs to settle a tort case for 25 per cent less than they had asked for in the complaint.

    In the case of Trump's six (originally seven) country Muslim entry ban, the effect of the Trump administration's allegedly fraudulent use of national security and anti-terror justifications in order to impose a ban on entry to the US by at least 100 million members of a religion toward which Trump showed intense hostility during his campaign, and at least two of the highest ranking advisers he appointed after he took office as president (Stephen Bannon and Michael Flynn) openly regarded as fundamentally evil, has had infinitely greater ramifications than the settlement of a tort suit.

    It has sent a clear message, not only to America's 3 or 4 million Muslim US citizens and legal residents, but to Muslims in every country in the world, whether or not on the banned list (which, by the terms of the executive order itself is not necessarily limited to just six countries - it contemplates adding many others to the list - guess which religion will be in the majority in those countries as well!) that their religion is disfavored in America in violation of our Constitution.

    The order also sends a message that people who belong to that religion, merely by that fact, will be subject to suspicion and special scrutiny under the name of "extreme vetting" if they seek to enter the US, and that members of that religion who are US citizens may also become subject to special surveillance and observation, as Trump also threatened repeatedly during the campaign.

    With this background, and in view of the enormous consequences of this executive order if it is upheld, the Trump administration is under an even greater obligation to be honest and truthful with the federal courts about the real reasons for issuing the six country entry ban order.

    Given the enormous evidence that is already in the record showing that the president is not adhering to that standard of honesty and good faith, either in the alleged national security justifications for the ban that he is asserting in court, or in his lawyers' even more dangerous and authoritarian argument that the courts have no power to look at the motivation for the ban at all, the question of whether the president is responsible for an attempt to commit a fraud upon the court cries out for investigation leading up to impeachment proceedings.
    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, without regard to their ethnicity, religion or nationality, obtain work visas and green cards.

    Roger's immigration law practice is primarily concentrated in H-1B specialty occupation, O-1 extraordinary ability and J-1 training work visas; and in green cards through labor certification and opposite sex or same sex marriage. His email address is

    Updated 05-14-2017 at 11:10 PM by ImmigrationLawBlogs

  3. Judge Orders Trump to Turn Over Giuliani Memo Allegedly Showing That Muslim Entry Ban was Based on Religion, not Nationality. Roger Algase

    In a May 11 story, Bloomberg reports that a federal judge in Detroit, Victoria Roberts, has ordered the Trump administration to turn over a memo drafted under the guidance of Rudy Giuliani which allegedly outlined a way to make Trump's proposed ban on entry to the US from selected almost 100 per cent Muslim Countries (often misleading called a "Travel Ban" by the media - Trump's memos ban much more than that) look as if it was not directed against the Muslim religion, but only against certain nationalities.

    According to the Bloomberg report, a court filing by the Arab American Civil Rights League in the lawsuit before Judge Roberts alleges the following:

    "While running for president, Donald Trump asked Giuliani to form a commission that would help draft a 'Muslim ban' to 'show him the right way to do it legally'...The commission then recommended that 'nationality be used as a proxy for religion' ..."

    If this memo is ever actually produced, and if it shows that the above allegation is accurate, this would be one more piece in the already large and apparently still growing jigsaw puzzle of bad faith on the part of the president in promulgating the entry ban orders and attempting to defend the latest one in the US 4th Circuit Court of Appeals.

    It should not come as any surprise that the president is so desperate to claim unlimited executive power to bar anyone he wants from coming to the US under the mantle of INA Section 212(f) and to resist any effort by the courts to hold him to the basic requirement of good faith set forth by the Supreme Court in Kleindienst v. Mandel (1972).

    The egregious lack of good faith shown by the history of Trump's latest six Muslim country ban is also discussed at length in the amicus brief of constitutional law scholars filed with the 4th Circuit which I refer to in my May 11 comment

    It is also worthy of note that this would not be the first time in US immigration law history that barring immigrants based "national origin" has been used as a pretext for doing so on the basis of religion or ethnicity.

    One need look no further than the notorious "national origins" Immigration Act of 1924, whose legislative history showed beyond any possible doubt (as virtually all historians agree) that nationality was only an excuse to bar unwanted Jews, Catholics and most of the world's other non-"Nordic" immigrants from coming to the United States.
    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 regard to their religion, ethnicity or national origin. Roger's email address is

    Updated 05-19-2017 at 07:49 PM by ImmigrationLawBlogs

  4. President's Bad Faith and Claim of Unlimited Power in Defending Muslim Ban Pose an Existential Threat to America's Democracy. Roger Algase

    The following comment has been revised as of May 11 at 9:27 pm.

    This comment will go into detail about the dangers to America's democracy posed by the claim of unlimited presidential power which Donald Trump's lawyers have been asserting before the US 4th Circuit Court of Appeals, and other federal courts, in order to try to justify his order banning at least 100 million people from entering the US without any showing of wrongdoing, merely because they happen to be citizens of six almost 100 per cent Muslim countries.

    First, let us take a close look at the president's claim, argued at length before the court in the 4th Circuit Muslim ban case, to the effect that even if a presidential action is in bad faith, the courts have no power to look into that fact or to act on it.

    Admittedly, when the president issued his original and revised Muslim ban orders, there was a national security pretext to be sure.

    However, both the history of these orders and the fact that there has been no evidence of any increased danger to America or risk of attack arising from the fact that the courts have blocked these orders show beyond any possible doubt that national security was not the main purpose of these orders, but that an unconstitutional assault on religious freedom and equal protection of the law for America's Muslim minority was.

    Both the history of these two orders, originating in the president's December 2015 call for a world-wide ban on entry to the US by Muslims, and the obvious bad faith behind these two orders are described in detail in an amicus brief submitted in the 4th Circuit litigation by a group of constitutional law scholars, led by a Joshua Matz, a distinguished former Harvard Law Review editor and law clerk to Justice Anthony Kennedy, and co-author with Professor Lawrence Tribe of a book called The Roberts Court and Constitution. See:

    For the full text of the amicus brief, follow the link by clicking on the word "desribed" in Matz' following article on the 4th Circuit case in The Guardian May 9th issue:

    and then follow the link to the full brief in the summary of the brief that will appear on the page the comes up after clicking on the above word "described".

    As Matz writes in the above article:

    "To start, supreme court precedent
    requires courts to assess presidential motives here. As I described in a brief on behalf of legal scholars, under the establishment clause, official acts based in animus toward any particular religion are forbidden."

    Matz continues:

    "As professor David Hemel has explained, under relevant immigration cases, 'a decision to exclude aliens from the country can be struck down on a convincing showing of bad faith.' Several judges, including Pamela Harris and James Wynn Jr., properly emphasized that these rules compel a judicial analysis of Trump's purpose."

    Then, after stating that all of Trump's anti-Muslim remarks, not just the ones he may have made as president, are relevant to this policy, Matz writes:

    "Any other conclusion would be destructive of our constitutional culture. The notion that the president can speak without any sense of legal responsibility for his statements is chilling."

    And, in answer to the claim of unlimited power over immigration which the president is now making before the courts, Matz writes:

    "It's true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But there surely 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 the evidence of Trump's bad faith toward American Muslims is overwhelming."

    Anyone who has any doubts about the "animus" (to put it euphemistically) toward Muslims and their religion which obviously motivated Donald Trump's Muslim ban orders need only read his venom-saturated, poisonous December 7, 2015 speech calling for a world wide ban on entry by Muslims to the US which I quoted in full in my previous comment on this subject, and which was since followed up by a long series of hostile comments and actions toward Muslims too numerous to mention here.

    Matz concludes:

    "Judges may not invalidate Trump's travel ban merely because they disagree with it, but they assuredly can strike it down for violating fundamental rights. Our history offers painful lessons about the potential for tragedy when courts fail to exercise this vital responsibility."

    And finally, Matz warns:

    "But if the judiciary blinds itself, freeing Trump of all responsibility for his words, policies like this may define our future"

    But the danger to our democracy that was presented by Trump's attempt by means of the Muslim ban orders to institute unfettered, one-man control over a key part of this country's immigration policy, without being subject to any control by the courts or the constitution, is already now already apparent.

    The fundamental issue presented by the president's Muslim ban orders, as will as his other unilateral actions against immigrants since become president is: How long will America remain a democracy in what Attorney General Jeff Sessions recently called the "Donald Trump era" of immigration?

    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 regard to their ethnicity, national origin, or religion. Roger's email address is

    To be continued.

    Updated 05-12-2017 at 07:52 AM by ImmigrationLawBlogs

  5. Texas bans sanctuary cities but Trump may be a step ahead. By Nolan Rappaport

    © Getty

    On Sunday, Texas Governor Greg Abbott signed into law a bill banning sanctuary cities in Texas, Senate Bill No. 4 (SB 4). According to Abbot, sanctuary city policies have deadly consequences and will not be tolerated in Texas.

    He referred to Kate Steinle, who was allegedly shot dead by an undocumented alien while she was walking on a busy pier in San Francisco with her father. The alien was a repeat felon who had been deported five times. A San Francisco police department had released him from custody without notice to ICE despite the fact that ICE had given the department an immigration detainer requesting such notice. San Francisco is a sanctuary city.

    Abbott supports legal immigration, but not harboring aliens who have committed dangerous crimes.

    Texas officials who foster sanctuary policies which might be considered harboring would be wise to reconsider that practice even if SB 4 is never implemented. Harboring is a federal criminal offense, which, when it results in a death, is punishable “by death or imprisoned for any term of years or for life.”

    What does the Texas law provide?

    Read more at ---

    Published originally on The Hill.

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

    Updated 05-14-2017 at 04:02 PM by ImmigrationLawBlogs

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