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I will begin with a disclaimer. It is not the purpose of my comments to support or endorse any presidential candidate in this year's election cycle, or to take any sides in this contest. This is especially true with regard to the Democratic primary, about which I have had nothing to say and am unlikely to have reason to say anything about in the future, absent some major and unexpected development regarding immigration policy on the part of one or both of the remaining candidates, Hillary Clinton and Bernie Sanders. (However, see "Comments", below.)
Nor is it my intention to take sides in the Republican presidential primary. (Again this is subject to a remark I have made in "Comments", below.)
However, I believe that there are certain connections between positions that some of the Republican candidates have taken on immigration policy and larger issues affecting the basic rights of American citizens, not only immigrants, and the survival of our democracy itself, which deserve discussion.
One such issue, clearly, is raised by Donald Trump's call to ban all Muslims in the entire world from entering the United States until further notice (from him, of course). Trump has never specifically clarified this proposal to state whether his ban would also include Muslims who are American citizens, something that would raise enormous First Amendment problems.
Even with such a qualification, banning foreign citizens from coming to the US solely on the basis of religion would arguably not be without effect on the rights of US citizens belonging to the same faith. See the US Supreme Court decision in Kleindienst v. Mandel, (1972).
In the above light, it is useful to compare the positions of some of the Republican presidential candidates on immigration policy with their views on another issue which goes to the heart of American democracy, namely the ban on using torture. The following will show that with one principled exception, that of Senator Ted Cruz (Texas), support for drastic measures against immigrants goes hand in hand with support for the use of torture on the part of the leading Republican presidential candidates.
I will begin with Ted Cruz.
To many supporters of immigration reform, the immigration proposals which have been put forward by Cruz are anathema, as shown by the summary which appeared recently in an Immigration Daily editorial. Cruz supports a hard line against any form of legalization for unauthorized immigrants, and he also wants to reduce legal immigration.
However, on the issue of using torture, which would violate the most basic human rights of immigrants and American citizens alike, Cruz has shown a courageous opposition to this form of atrocity which none of the other major Republican presidential candidates has been willing to do,
To be continued in Part 2.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. His practice is focused primarily on obtaining work visas and green cards for skilled and professional immigrants, something he has been doing for more than 35 years.
Roger believes that immigration is, above all else, a human rights issue. His email address is firstname.lastname@example.org
Updated 02-05-2016 at 02:26 PM by ImmigrationLawBlogs
Just in case anyone thought that Senator Marco Rubio (FL) is offering a Republican alternative to Donald Trump's Islamophobia, Rubio issued a February 3 statement denouncing President Obama for making a speech at a Baltimore mosque in which the president condemned prejudice against Muslims.
Obama is the second president to visit a mosque in order to speak out against anti-Muslim bigotry. The first was a Republican, George W. Bush, shortly after 9/11.
Rublio had been under attack from the right for supporting immigration legislation which would have allegedly made it easier for people to come to the US from "jihadist" countries.
In his comments, Rubio accused the president of "dividing" and "pitting" people against each other by claiming that there is discrimination against Muslims in America. He then proceeded to admit that there is such discrimination, but that "the bigger issue is radical Islam".
Rubio did not explain how the need to protect against radical Islam justifies discrimination against all Muslims, solely because of their religion, even when there is no evidence of any terrorist connection.
Rubio has evidently gone a long way from his previous support for comprehensive immigration reform in order to assume the mantle of Donald Trump.
For the full Huffpost story on Rubio's comments, see:
Updated 02-04-2016 at 06:13 AM by ImmigrationLawBlogs
In the aftermath of the Iowa Republican presidential primary, the media are outdoing themselves with speculation over whether the fact that Donald Trump managed to come in behind Senator Ted Cruz by the "huge" margin of some 6,000 votes, and that Senator Marco Rubio came within about 2,000 votes of overtaking Trump for second place has "destroyed" Trump's supposed "aura of invincibility".
While this may or may not make a good story in order to sell newspapers (or gather website clicks), there is a much more important and relevant message coming out of the Iowa primary for advocates of immigration reform. This is that all of the top three candidates have adopted an ultra-hard line on immigration that is not only opposed to any form of legalization for unauthorized immigrants, but also favors reducing legal immigration levels.
One has to go far down the list of Republican candidates who finished in the single percentage digits, all the way down to John Kasich, or even to ones who have already dropped out of the presidential race, such as Lindsey Graham, to find anyone who supports any kind of immigration reform.
It is true that all three of the top finishers in Iowa have some history of support for immigration. Trump has sponsored over 1,000 mainly Mexican immigrants for legal visas and has also supported immigration reform in the past; Cruz once introduced a bill that would have raised H-1B quotas which he is now trying to spin as only a "poison pill" to derail immigration reform; and Rubio, of course, was one of the authors of the 2012 immigration reform bill which passed the Senate.
But in their present incarnations, all three candidates are outdoing themselves to appeal to a primarily white, fiercely anti-immigrant Republican base. Except, possibly, for Rubio's support (in principle) for more liberal skilled immigration policies (while reducing family immigration, which would have a devastating effect on Latino and Asian communities), the differences between them are mainly ones of detail. The result could very well be to fracture the US electorate along racial and ethnic lines even more than was the case in 2012,
According to the Huffington Post, immigration reform advocates see this as something that could be good news. Huffpost quotes Frank Sharry, founder of the pro-reform group America's Voice, as follows:
"Our theory of winning is that Republicans have to get hurt in yet another general election before we have a chance to pass comprehensive immigration reform...
It creates a huge opportunity for the 2016 election...for Latino and Asian voters to be decisive in a way that makes the RNC autopsy in 2017 like the 2013 report but on steroids,"
Huffpost also quotes Todd Schulte of the pro-reform group FWD.us as follows:
"...electing someone who favors rounding up and deporting every single undocumented immigrant - is not only incredibly unlikely, but their mere nomination would prove a historical disaster for the [Republican] party..."
Whether using immigration as an issue to divide America even further along racial and ethnic lines, (and in Donald Trump's case, religious lines as well), is something that accords with this country's identity, traditions and ideals as a nation of immigrants based on equal opportunity and justice for all people, is something that we will no doubt have more opportunity to learn about as the 2016 presidential campaign progresses.
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 many different parts of the world and ethnic/religious backgrounds obtain work visas, green cards and US citizenship.
Roger's email address is email@example.com
Updated 02-03-2016 at 11:22 AM by ImmigrationLawBlogs
The final four paragraphs of this post have been revised and expanded early in the morning of February 5.
Update: February 2, 6:43 am:
Slate wrote the following right after the Iowa caucus results were announced:
"Donald Trump, the man who built a front-runner status in the Republican primary on the basis of his nativist campaign and Islamophobic rhetoric, is now also a loser in the Iowa caucus. Sad!
(Bold in the original.)
It would also appear that Trump's "birther" attack against Cruz as allegedly failing to be a "natural born" US citizen because of his birth in Canada to an American mother, and his even more scurrilous, racially tinged, claim that Cruz was a Canadian "anchor baby", failed to have any major effect on the Republican voters of Iowa.
But there are still many primaries left to come. It is too early to tell whether America has dodged Trump's anti-immigrant, anti-Hispanic, anti-Muslim and "birther" bullets of racial division and authoritarian rule.
My original post appears below.
The following post has been revised as of February 1 at 8:20 am.
Well before Donald Trump became a presidential candidate, he became notorious for his "birther" attack on President Obama's US citizenship by claiming that Obama was really born in Kenya, in the face of irrefutable evidence that Obama was actually born in Hawaii.
Does Trump's claim that his chief Republican presidential opponent, Senator Ted Cruz (Texas), is also falsely claiming to be a US citizen by birth because Cruz was born in Canada have any more merit than Trump's mendacious "birther" attack against President Obama?
Not if one actually pays any attention to and cares about what the law of the country that Trump wants to lead actually says.
Congress has clearly defined who is a US citizen by birth in 8 USC Section 1401. Paragraph (g) of that section provides that a citizen by birth includes anyone born outside the US who, at the time of birth, had at least one US citizen parent who had lived in the US for at least five years since reaching the age of 14.
No one, not even Trump, has challenged the fact that Cruz' mother met that definition at the time Cruz was born. If someone believes that the laws of the United States mean what they say, that should be the beginning and the end of the discussion - as indeed two former US Solicitor Generals, Neal Katyal and Paul Clement have shown in a March 11, 2015 Harvard Law Review Forum article mentioned in one of my recent posts (On the Meaning of "Natural Born Citizen", 128 Harv. L. Rev. F. 161)
In their article, Katyal and Clement show that at the time the US Constitution was written, the commonly understood meaning of the term "Natural Born Citizen" in the US was based on English Common Law (which has traditionally been understood to include both English court decisions and English statutory law), and that under the Common Law, people born outside England to one or more English parents (at that time, the father specifically had to be an English subject, but this has obviously since been changed), were English citizens from birth.
Katyal and Clement also show that under the Constitution, Congress has always had the power to change the requirements for US citizenship by birth outside the United States. This power has never been challenged by the courts.
Therefore there is no serious argument that can be made to the effect that Congress somehow lacked the power to enact Section 1401(g). The fact that Trump has even raised this issue, let alone his promoting the false and irresponsible claim that Cruz's birth in Canada by itself, even with American parentage, disqualifies him for US citizenship by birth, raises legitimate questions about Trump's own fitness for the highest office in this land.
While there may admittedly be at least a scintilla of legitimacy to Trump's doubts about Cruz' US citizenship, based on an unrealistically narrow and strained "originalist" interpretation of the Constitution as Harvard Law School Professor Lawrence Tribe has suggested, Trump's related claim that Cruz was an "anchor baby" in Canada is nothing more than derogatory and inflammatory name-calling with obvious negative racial connotations, and without a shred of truth.
There is no evidence whatsoever that either of Cruz' parents gained any immigration status in Canada, or avoided any negative immigration action, as a result of Cruz' birth in that country, which is the common meaning of this vicious and highly offensive term.
This "anchor baby" insult shows that Trump is not really interested in discussing the law surrounding his "birther" attack on Cruz, any more than he was interested in a serious discussion of his "birthrighter" claim that the 14th Amendment doesn't guarantee automatic US citizenship to all American-born children.
The latter claim was rejected by the US Supreme Court 118 years ago, in U.S. v. Wong Kim Ark, a decision which is still the law of the land. But what is a little detail like the law of the land to Donald Trump, compared to an opportunity to vilify and humiliate a political opponent, especially one who has now actually dared to beat America's allegedly "invincible" strongman in the Iowa caucus.
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 professional and skilled workers from many different parts of the world and ethnic/religious backgrounds obtain work visas, green cards, and US citizenship.
Roger's email address is firstname.lastname@example.org
Updated 02-06-2016 at 12:38 AM by ImmigrationLawBlogs
In my previous posts, I have not hesitated to condemn Donald Trump's proposals to carry out mass deportation of Mexican and other minority immigrants on a scale unprecedented in America's history, and to shred the Constitution by banning over a billion Muslims from coming to this country solely because of their religion. I have even compared these proposals to certain others which were actually carried out (to a far greater and more horrifying extreme, of course) by a certain governmental authority specifically mentioned in USCIS Adjustment of Status Form I-485, Part 3, Item C.7.
But, how many people has Donald Trump actually deported so far? How many immigrants has he actually kept out of the United States? The answer is zero. To the contrary, Trump has sponsored over 1,000 immigrants for legal visas, most of them from Mexico, the country for which he now expresses such great contempt.
Therefore, as my colleague Matt Kolken points out, it is important to focus on who is actually carrying out the deportations, who is now conducting raids by sending what even immigration opponent Senator Ted Cruz (D-Texas) aptly calls jackboots to knock on (or knock down?) doors in the middle of the night and and send helpless, terrified mothers and children back to gang-ridden Central American countries where they face a high risk of violence or even being killed.
Who has been locking Central American families up in concentration-camp like conditions and perversely arguing that he has the legal right to do so in federal court? Who has deported a record number of immigrants while he has been in office, more than any other president in history? It is not Donald Trump.
To their credit, a number of responsible Republicans, in the National Review and elsewhere, have been calling out Donald Trump for his proposals, even though he has yet in fact to carry a single one of them out. Now, Democrats are beginning to speak out against President Obama's inhuman actions against vulnerable Central American mothers and children, actions that are actually taking place, not just proposals by someone who happens to be running for office.
It is about time.
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 H-1B specialty occupation and O-1 extraordinary ability petitions, and green cards through labor certification and opposite sex or same sex marriage, among other immigration and citizenship cases.
Roger believes that prejudice against or violations of basic human rights of any group of immigrants endangers the rights of all immigrants, as well as of American citizens. His email address is email@example.com
Updated 01-29-2016 at 10:14 AM by ImmigrationLawBlogs