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Update: March 18, 12:20 pm
POLITICO reports on March 17 that the 9th Circuit Court of Appeals judges are escalating their attacks on each other in additional opinions written after the five-judge dissent authored by Judge Jay Bybee, discussed below in my expanded version of my original comment first posted on March 17.
I will have more to say about Judge Bybee's dissent and the fierce reaction to it on both sides in an upcoming comment ilw.com comment.
For the POLITICO story, see:
The expanded version of my original comment appears below.
In what could could be one of the most extraordinary judicial opinions ever written in the history of US immigration law, 9th Circuit Judge Jay Bybee, joined by four other of that court's judges, issued a dissenting opinion which sharply criticized Donald Trump personal attacks on the judges of the court, even while supporting Trump's claim of almost unlimited presidential power to ban immigrants from entering the United States.
For a summary of Judge Bybee's dissent an a link to the full opinion in the American Bar Journal, see:
In a lengthy opinion which relied heavily on the alleged limits on judicial power to interfere with "good faith" decisions of the executive branch to exclude non-US citizens from entering the US (citing Kleindienst v. Mandel, S. Ct. 1972, but said nothing about the Constitutional rights of U.S. citizens to free exercise of religion and equal protection of the law, Judge Bybee wrote in his dissent that:
"We are judges, not Platonic guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decision to permit or forbid entry into the United States, to the President and Congress."
Without going into the origin of the Supreme Court's doctrine of "Plenary Power" being vested in Congress and the executive over immigration, dating from the dark days of the Chinese exclusion laws, it is enough to point out that Trump's Muslim ban orders did not even meet the very basic Kleindienst v. Mandel test, cited by Judge Bybee, of being facially legitimate and in good faith.
However, after making clear in his opinion that he (and the other four judges who joined in the dissent) supported Trump's view that the courts have little or no business questioning his power to bar any foreign citizen or citizens he chooses from entering the US for almost any reason he chooses, Bybee, one of America's most conservative judges, who achieved notoriety as the author of the G.W. Bush administration's "Torture Memos", wrote a denunciation of Trump's authoritarian attempts to intimidate the judiciary which, one can safely predict, will be quoted more many years or even centuries to come, for as long as America continues to remain a democracy:
"Even as i dissent from our decision not to vacate the panel's flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were all out of bounds of civic and persuasive discourse - particularly when they came from the parties [i.e. Donald Trump]. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy."
Judge Bybee's stinging rebuke of Trump's personal attacks on judges who do not agree with him concluded:
"Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all."
As if to lend credibility to Judge Bybee's unprecedented rebuke of a sitting president for undermining the rule of law in America, even while agreeing with Trump's position on the case at hand, Trump responded with another, ominous attack against the court's majority judges who supported a more limited view of presidential power, accusing the 9th Circuit as follows:
"That circuit is in chaos and that circuit is frankly in turmoil."
Trump's latest attack follows a threat in February by Republican Senators to break up the 9th Circuit in response to its original decision blocking Trump's seven country Muslim entry ban.
What does this say about the chances for survival of democracy and the rule of law in America while Donald Trump is president?
As I predicted in an earlier Immigration Daily comment, both Trump's claim of unlimited presidential power over immigration and his personal attacks against judges who disagree with him put the foundations of America's democracy at risk.
The issue raised by Trump's attempt to ban more than 100 million Muslims in six, formerly seven, countries from entering the United States has now escalated from an assault on a particular religion to an attack on the Constitution's separation of powers and judicial independence itself.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.
Roger's email address is firstname.lastname@example.org
Updated 03-18-2017 at 01:29 PM by ImmigrationLawBlogs
The following comment includes revisions made as of March 17 at 9:02 am:
A federal district court judge in Hawaii, Derrick Watson, late in the day on March 15, issued a temporary restraining order putting a nationwide hold on Trump's latest version of the ban on entry to the US by some 100 million citizens of six 99 per cent Muslim countries.
In his opinion, the judge cited a mountain of evidence, both during the presidential campaign and after his inauguration, that the ban was motivated by an intent to disfavor Muslims and their religion, in violation of the guarantee of religious freedom in the first Amendment to the Constitution.
Trump's history of attacking all Muslims as potential terorists as the motivation for the six country ban and his previous seven country version (which Trump said as recently as March 15 that he wishes he had stuck with!) is so obvious that it cannot be seriously challenged.
However, Trump's lawyers are now claiming that the court should have disregarded the obvious truth and accepted Trump's alternative version of reality, that the ban is somehow related to national security despite the very thin veneer of evidence to support that claim produced so far, because many of his antt-Muslim statements were made during the presidential campaign, when candidates will say anything and everything to get elected, rather than after he actually took office.
This ignores the fact that everything Trump has done and said about admitting Muslims to the US is entirely consistent with what Trump said about Muslims and threatened to do to them during the campaign.
Trump's Orwellian insistence that the courts should disregard the open and obvious hatred of Muslims in which he has been revelling ever since he called for a world-wide ban on Muslim entry to the US in December, 2015, would do more than merely violate the religious freedom guaranteed to all Americans, Muslims not excepted, by the First Amendment to our Constitution.
In addition to paraphsasing Orwell's famous dictum in Animal Farm that "All animals are equal, but some animals are more equal than others." by holding, in effect, that "All religions are equal in America, but Islam is less equal than others", Trump is also, in effect, claiming that, as president, he has the power, as Big Brother did in Orwell's 1984, to declare that "2+2 equals 5."
Fortunately, not only for America's core value of freedom of religious belief, but also for continued democracy in America, Judge Watson rejected Trump's extreme claim, not only to be the sole determiner of immigration policy but the sole arbiter of reality - what is true and what is false.
The District Court's decision can be accessed at:
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.
Roger's email address is email@example.com
Updated 03-18-2017 at 11:30 AM by ImmigrationLawBlogs
Hawaii has filed a lawsuit challenging President Donald Trump’s revised version of his Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” on four main grounds:
1. Hawaii claims the Order violates the prohibition against nationality-based discrimination in the Immigration and Nationality Act (INA).
This argument is based on 8 U.S.C. § 1152(a)(1)(A) of the INA, which prohibits discrimination on the basis of nationality. Hawaii claims that the EO violates this provision by prohibiting nationals of six countries from entry into the United States.
But this interpretation takes the section out of context. It just applies to the per country levels for the annual allocation of immigrant visas to aliens coming to the United States to live here permanently.
In the section titled “Numerical limitations on individual foreign states,” it states that “Except as specifically provided in paragraph (2) [family-sponsored and employment-based immigrants] and in sections 1101(a)(27) [special immigrant], 1151(b)(2)(A)(i) [aliens not subject to direct numerical limitations], and 1153 [allocation of immigrant visas] … no person shall … be discriminated against in the issuance of an immigrant visa because of the person's … nationality.”
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 03-15-2017 at 08:35 AM by ImmigrationLawBlogs
Leaders of two of America's most prominent religious institutions, Rabbi Burton L. Visotsky of the Jewish Theological Seminary and Rev Bertram Johnson of the Riverside Church (both in New York) have issued a joint statement condemning Donald Trump's revised ban on entry to the US by citizens of six overwhelmingly (in some cases, more than 99 percent) Muslim countries.
Haaretz, one of Israel's leading newspapers, has also compared Trump's attacks on Muslims to the movement to keep Jewish immigrants out of the US in the late 19th and early 20th centuries.
In their joint article appearing the The Hill on March 12, Rabbi Visotsky and Reverend Johnson pointed to a recent statement to Fox News by White House policy adviser Stephen Miller that the new six country Muslim ban order will "have the same basic policy outcome" as the previous order, which was stayed by the 9th Circuit and other federal courts.
It would be very surprising if the federal courts, such as the US District Court in Hawaii which is now reviewing the new executive order, ignore or overlook Miller's statement in determining whether there is any material difference between the intent to discriminate against immigrants on the basis of religion in the new six country ban and the original, now revoked, seven country ban order.
In their statement, Rabbi Visotsky and Reverend Johnson also show clearly, in words which arguably go right to the heart of the matter more directly than the opinions of the 9th Circuit and other federal courts have done to date, why religious discrimination against Muslim immigrants also adversely affects the Constitutional rights of Muslim American citizens to the free exercise of religion
"This Muslim Ban 2.0 is the next in a series of actions by the adminstration that make Muslim Americans feel unwelcome in their own country."
And it is not only the rights of Muslim Americans that are affected. As the two distinguished religious leaders also state:
"That 'same basic policy outcome' violates the principles established in the Constitution. Our nation was founded on the freedom of religion and we must protect that freedom for all Americans today."
In other words, Trrump's new six country Muslim ban, no less that the first one, is a blow against the religious freedom of all of us in America today, regardless of what religion we may or may not belong to or practice.
As the grandchild of a another Jewish Rabbi, one who immigrated to America in the late 19th century, at a time of the same type of hostility toward Jewish immigrants that Donsld Trump and his top advisers are now showing toward Muslim immigrants, I can well understand and relate to the above statement by these two respected and courageous religious leaders.
The above cited article in Haarerz well describes the atmosphere of hatred and exclusion which Jewish immigrants to America had to face in the time of my immigrant grandparents.
This history, as well as America's history of prejudice and persecution toward Irish, Asian and, let us not forget, Mexican, as will as many other immigrant groups which were not from the "Nordic", Protestant, countries of Western Europe, is woven into the fabric of Trump's Muslim ban orders.
With regard to Jewish immigrants specifically, Haaretz, in an article written prior to last year's election, stated:
"The revered Senator Henry Cabot Lodge lobbied against Jewish immigration at the end of the 19th and start of the 20th centuries. He was the driving force behind the literacy test that was aimed at keeping Jews out.
The Israeli newspaper then contrasts Lodge's "restraint" with regard to voicing his antagonism toward Jewish immigration with Trump's openness in identifying which ethnic or religious immigrant groups he is most opposed to:
"But in a famous speech in 1897, Lodge refrained from specifying that it was the Jews who were bothering him the most; 120 years later, Trump has had no constraints in identifying Mexicans as murderers and pinpointing Muslims as problematic immigrants who had no intention of assimilating."
In its decision blocking Trump's first, seven country Muslim immigration ban, the 9th Circuit recognized that the history of that order, including Trump's election campaign statements and proposals, was relevant to understanding that order's real intent, and that this history could mot and should not be overlooked in making a final determination concerning the January 27 order's legality and Constitutionality.
One hopes that in the State of Hawaii's lawsuit against the replacement Muslim ban order, and in any other lawsuits that may be brought against that order, the courts will consider not only the immediate election campaign history of Trump's Muslim ban orders, but also their larger context of Trump's mass deportation executive orders targeting Latino, Asian and other minority immigrants.
And in order to gain a full understanding of both Trump's Muslim ban orders and his mass deportation orders, America's history of persecuting minority immigrants, going back at least to the time of the mid 19th Century Know-Nothings, cannot be lightly passed over.
David Bier, an immigration policy analyst at Cato Institute, writing in the New York Times on January 27, in response to Trump's original seven-country Muslim ban order, describes this history as follows:
"...a long and shameful history in this country of barring immigrants based on where they came from. Starting in the 19th century, laws excluded all Chinese, almost all Japanese, then all Asians in the so-called Asiatic Barred Zone. Finally, in 1924, Congress created a comprehensive 'national origins system' skewing immigration quotas to benefit Western Europeans and to exclude most Eastern Europeans, almost all Asians, and Africans.
Mr. Trump appears to want to reinstate a new type of Asiatic barred zone by executive order."
In effect, Trump, in his original seven Muslim country order, as in essence unchanged in his new six Muslim country ban order affecting some 100 million people, 99 percent (or close to it) of whom belong to that religion, is trying to bring back America's long and shameful history of barring immigrants from the US on the basis of race and religion.
And Trump is not even trying to do this by Congressional action, which might at least provide a fig leaf of "legality" under the Plenary Power doctrine set forth by the Supreme Court in the dark and shameful time of the Chinese Exclusion laws.
Instead, Trump is trying to wipe out 50 years of non-discriminatory immigration policies mandated by the landmark 1965 immigration reform law, which abolished the discriminatory 1924 national origin immigration quotas, by one -man executive fiat.
Bier also alludes to the authoritarian nature of Trump's ban, which, according to mostt if not all news reports, was drawn up without any input, or even knowledge, by Congressional leaders in either party, or even Trump's own national security or foreign affairs experts:
"...Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president to 'suspend the entry' of 'any class of aliens that he finds are detrimental to the interests of the United States."
"But the president ignores the fact that Congress, the restricted this power in 1965, stating plainly that no person could be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence.'...
Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between 'the issuance of a visa' and the 'entry' of the immigrant. But this is nonsense. Immigrants cannot be legally issued a visa if they are barred from entry. This all orders under the 1952 law [INA Section 212(f)] apply equally to entry and visa issuence, as his[January 27] order acknowledges."
"While presidents have used their power dozens of times to keep out certain groups of foreigners under the 1952 law, no president has ever barred an entire nationality of immigrants without exception."
Herein lies tha biggest danger of all in both Trump's original Muslim ban order and in is slightly scaled down, essentially cosmetically changed one, which, as quoted above, still seeks to achieve "the same basic policy outcome".
The danger is that by claiming that he has the right to a vast expansion of the unilateral power to exclude immigrants that was actually conferred by Congress or has been used by any previous president, Trump is taking one more giant step toward imposing authoritarian, one man rule in America.
This can only remind us of how another chief executive in a different country used a different set of enactments, aimed against the same ethnic/religious group that Senator Henry Cabot Lodge was so anxious to keep out of America, as a stepping stone to solidifying absolute power in his country just over 80 years ago.
These enactments, promulgated in Germany in 1936, were known as the Nuremberg Laws.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants, without regard to ethnicity, religion or nationality, obtain work visas and green cards in this land of freedom and equal opportunity for all.
Roger's email address is firstname.lastname@example.org
Updated 03-13-2017 at 09:04 AM by ImmigrationLawBlogs
The State of Hawaii is the first state to file a lawsuit in Federal District Court against Donald Trump's revised order banning entry to the US by citizens of six overwhelming Muslim countries (at least some, if not all of which are more than 99 per cent Muslim), and which also provides for additional countries, almost certainly Muslim ones as well, to be added to the banned list later on.
According to the latest reports, at least four other states, including New York, are planning to join the lawsuit, which has been filed in the United States District Court for the District of Hawai'i and is entitled:
State of Hawai'i and Ismail Elsikh v. Donald J. Trump (et al), Civil Action No: 1:17-cv-00050-DKW-KJM
For a link to the full complaint, go to:
The complaint sets forth the full history of Trump's Muslim ban orders based on Trump's campaign statements and other statements by his top advisors and makes clear beyond any possible doubt that the motivation for the orders was to exclude Muslims from the United States based on their religion only.
It then goes on to show how the discrimination against Muslim immigrants on the basis of their religion adversely affects the rights of Muslim US citizens, including but not limited to the individual plaintiff (a Muslim Imam), his family and members of his congregation. Details of this portion of the complaint will be discussed below.
Finally, the complaint describes how the interests of the State of Hawaii itself, as a center of religious and ethnic diversity, and with an economy dependent in large part on tourism, are damaged by the ban.
For the following reasons, it is virtually certain that the federal courts, including but not limited to the district court in the above case, will strike down the new Muslim ban order, despite the fact that it cures some of the more obviously egregious aspects of the original ban, such as the exclusion of lawful permanent residents ot the US coming from the affected countries.
First, the purpose and intent of the new ban, no less than the first one, is obviously to discriminate against immigrants and visitors based on their religion. As will be shown below, the "national security" justification for the ban is so thin as to verge on being a fraud on the court. See:
Second, the basic Constitutional guarantees of free exercise of religion and prohibition against establishment of religion are affected by the ban in a way that retrains and intimidates Muslim US citizens from the free exercise of their religion.
Third, contrary to the arguments which the Trump administration unsuccessfully brought before the 9th Circuit Court of Appeals in connection with the now revoked original seven Muslim country the courts have the power, and the duty, to look behind the ostensible reasons for the presidential finding under INS Section 212(f) that entry to the US from the banned Muslim countries is against the interests of the United States.
It is true that this section gives the president wide power over entry into the United States by foreign citizens. But we are not (yet) at the point where Adolf Hitler could say, as he did:
"For 24 hours, I was the Supreme Court of Germany."
To be continued.
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, and from a variety of ethnic and religious backgrounds, obtain work visas and green cards.
Roger's practice is primarily concentrated in H-1B specialty occupation and O-1 extraordinary ability work visas, J-1 training visas, and in green cards through labor certification (PERM) and through opposite sex or same sex marriage. His email address is email@example.com
Updated 03-10-2017 at 06:16 PM by ImmigrationLawBlogs