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Sometimes, in order to find the real reason for a court's decision on any issue, one has to look at the footnotes to the opinion, rather than its main body. A good argument can be made that the same is true of the 5th Circuit Court of Appeals' March 26 decision upholding a preliminary injunction by Federal District Judge Andrew Hanen against implementation of President Obama's November, 2014 executive action establishing DAPA and expanding the scope of DACA.
In this decision, consisting of a 41-page majority opinion by two Republican-appointed judges and a 26-page dissent by a Democratic-appointed one, the appeals court gave at least a temporary victory to 26 Republican-controlled states in their lawsuit against a Democratic president in what is arguably the most highly polarizing and politicized issue in America today - whether to carry out mass deportation of the 11 million predominately Hispanic immigrants who are now in this country without legal permission.
If one reads the majority and minority opinions, it would seem as if the momentous issue of whether an estimated 4 million people who meet the eligibility criteria for discretionary relief under the president's latest executive action will in fact be protected from deportation turns on relatively trivial issues.
Judge Jerry E. Smith's majority opinion contains a lengthy discussion about the question of whether the plaintiff states have standing to sue. According to this discussion, standing to sue turns, in large part, on the issue of whether Texas might be "harmed" by having to raise its fees for drivers' licenses to meet estimated demand from potential DAPA/DACA Extension beneficiaries.
Four million people to be deported because one state might have to charge more for drivers' licenses? Any lawyer is used to seeing important substantive questions hinging on less consequential technical issues, but is there not an Alice in Wonderland quality about making the lives of millions of immigrants and their families depend on the amount of a state's driver's licence fee?
Not to be outdone, the dissenting judge, Stephen A. Higginson, went into a detailed analysis of what he sees as a distinction between "lawful presence" and "lawful status" under the immigration laws. While agreeing with the majority that granting lawful status through executive action without Congressional approval might be beyond the scope of the president's authority, he argues that granting lawful presence, which he sees as conferring fewer benefits than status, is permissible without the consent of Congress.
Again, one has to ask, with all due respect to the learned judges on both sides, whether an issue of such enormous social, economic and political consequence should turn to such a significant extent on trivia, word games and legal hairsplitting.
However, in the first sentence of the final footnote of the entire discussion, Number 12 to Judge Higginson's dissent, appearing at the very end, on the last page of the 68-page transcript, he gives us a strong hint as to what this lawsuit is really about. One might even say that he is letting the cat out of the bag. The footnote begins as follows:
"Over twenty years ago, Judith Shklar observed in her book: American Citizenship, aptly subtitled The Quest for Inclusion, that the United States has an 'extremely complicated' history of 'exclusions and inclusions, in which xenophobia, racism, religious bigotry and fear of alien conspiracies have played their part'..." (Bold added.)
Now, at the very end of 68 pages of discussion, we are finally shown some insight into what the motivation for this lawsuit, Texas v. U.S., might actually be.
My conclusion about the best way to understand this and many other judicial opinions: Follow the footnotes.
Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School who has been helping employment-based and family-based immigrants obtain work visas and green cards for more than 30 years. Roger believes that thorough legal analysis, careful attention to detail and a strong personal commitment to the welfare of each client are the keys to immigration success.
His email address is firstname.lastname@example.org
Updated 05-27-2015 at 10:18 AM by ImmigrationLawBlogs
Update, May 25, 3:25 pm with revisions as of 8:08 pm:
A May 24 Los Angeles Times article: Monk dubbed 'Buddhist Bin Laden' targets Myanmar's persecuted Muslims provides additional light on why the Rohingyas are so desperate to leave Burma, even at the risk of their lives in crowded, inadequately supplied boats at the mercy of human traffickers, while hoping to reach countries which refuse to accept them.
The Huffington Post story in my original post below mentions violence resulting from clashes between the Muslim Rohingyas and members of Burma's Buddhist majority as one of the causes of the Rohingyas' mass exodus from that country. This could, conceivably, lead to a misunderstanding on the part of some readers to the effect that the Rohingyas are not really refugees under international law because they are purportedly fleeing from random violence, not government persecution, even though the Huffpost article also mentions "the hate-mongering rhetoric of extremist Buddhist monks".
The LA Times article, however, makes clear that these monks speak for and with the approval of the Burmese government, if not with its open support. According to this report, the most vocal of these monks, who has been called the "Buddhist Bin Laden", is named Ashin Wirathu. The LA Times relates:
"Wirathu, 46, might bear as much responsibility as any individual for the desperate exodus of Muslims from Myanmar aboard overcrowded fishing boats bound for Thailand and Malaysia.
In speeches and Facebook posts, he has warned of an impending 'jihad' against the huge Buddhist majority, spread rumors of Muslims systematically raping Buddhist women and called for boycotts of Muslim-owned businesses...
He represents the blunt edge of systematic religious discrimination in Myanmar that has driven about 1 million Rohingyas, a Muslim minority group, to the farthest margins of society...
Human rights groups say Wirathu and the radical group he leads, called 969, stoked sectarian riots that have killed scores since 2012."
The LA Times article leaves no room for doubt that Wirathu's activities are entirely in line with official government policy toward the Rohingyas:
"Wirathu's militant Buddhist nationalism is fed by official propaganda that portrays the Rohingya as people from Bangladesh who entered Myanmar illegally, although many Rohingya families have liven in Myanmar for generations. Government policies deny the Rohingya citizenship or the right to vote and subject them to severe restrictions on movement, marriage and procreation...
'Wirathu plays a central role with his hate speech and the Islamophobia it creates, given that the Rohingya are surrounded by a hostile community that can be whipped into violence very quickly,' says Penny Green, director of the International State Crime Initiative at Queen Mary University of London and author of a forthcoming report on Myanmar." (Emphasis added.)
See also, Reuters:
Special Report: Myanmar gives official blessing to anti-Muslim monks (June 27, 2013).
According to Reuters, the hate-promoting 969 movement, which calls mosques "enemy bases", enjoys support from senior government officials, establishment monks, and even some members of Nobel Peace Prize winner Aung San Suu Kyi's opposition National League for Democracy, and Burma's minister of religious affairs is among Wirathu's admirers.
The Rohingyas are far away from America and are virtually unknown in the US. But their plight should be a warning to our own politicians of the terrible consequences that can result from engaging in Islamophobia, as well as "negative ethnicity" (to use a term coined by a Kenyan Gikuyu activist, Koigi Wa Wamwere, in his 2003 book of the same name) against millions of Hispanic immigrants by agitating in favor of taking away Constitutionally guaranteed birthright citizenship from their US-born children unless their parents have legal status. This could only lead to expulsion of many of these children, resulting in de facto if not de jure ethnic cleansing in America.
The following is my original May 23 post:
Since the time that I posted my May 18 comments about the inhumane refusal of certain Southeast Asian countries to let the Rohingya boat people from Burma land despite their desperate conditions after having been abandoned at sea by human trackers, there appears to have been a change of heart by the countries concerned, namely Malaysia, Indonesia and Thailand. Even Burma is now reportedly engaging in rescue operations. See:
Malaysia and Indonesia, at least, are now willing to accept the refugees temporarily while other countries make arrangements, with the help of the UN, to resettle them permanently.
This may take some time. Only one country, Gambia, an impoverished West African dictatorship, has offered to accept them so far.
Since the Rohingya are hardly a household word in America, or anywhere else outside South Asia and Southeast Asia, some readers may ask whether they are really refugees at all, or merely economic migrants in search of a better life. Answers to this question can be found in a May 22 Huffington Post story:
Why Rohingyas Are Willing To Risk Everything To Flee Myanmar
The Huffpost provides the following background to the persecution of this Muslim group in mainly Buddhist Burma:
"A majority of Rohingya Muslims live in Rakhine, a Buddhist majority state in western Myanmar [Burma]. The group says its members descend from Arab traders...and have lived in the area for hundreds of years. Many people in Myanmar, however, including prominent political and religious leaders, consider the Rohingyas...Bengalis who migrated to Myanmar illegally and have no right to live in the country."
In 1982, Myanmar approved a law that officially restricted citizenship to members of ethnic groups it said had settled in modern-day Myanmar prior to 1823. The Rohingya were not considered one of these groups and its members effectively became stateless...
"The lack of citizenship deprives Rohingyas of their basic rights, including access to education, freedom of land movement, land rights, the protection of their property and the right to marry freely." (Emphasis added.)
The article continues:
"Tensions between Buddhists and Rohingya Muslims in Rahkine state have lingered for decades, partly fueled by hate-mongering rhetoric of extremist Buddhist monks...
But the anti-Rohingya sentiment transgresses Rakhine state's border and is widespread among Myanmar's Buddhist population...Myanmar's president, Thein Sein, said in 2012...that the only solution to the sectarian strife between Buddhists and Muslims in Rakhine was to expel the Rohingya to other countries or camps overseen by the United Nations refugee agency. The issue is so sensitive that even Aun San Suu Kyi, a Nobel Prize winner fro Myanmar, has failed to speak out about it." (Emphasis added.)
The Huffpost story continues:
"The tensions between Buddhists and Rohingyas led to major violence...in 2012 and 2013 when clashes left hundreds dead and forced 140,000 Rohingya people to flee their homes for temporary refugee camps outside the state capitol, Sittwe.
The camps are known for horrible conditions; they lack adequate housing, sanitary conditions, access to food education and health care...
'I witnessed a level of human suffering in the IDP camps that I have personally never seen before...appalling conditions...' UN Assistant General-Secretary for Humanitarian Affairs Kyung-hwa Kang said after visiting the camps..."
The same article also explains that conditions are just as bad outside the camps, and that many Rohingyas are barred from leaving their villages, where they are unable to pursue education or employment.
According to this report, about 300,000 have fled to Bangladesh, where life is no easier, except for the 30,000, only 10 percent, who have been able to register with the UN as refugees. It would seem that the UN is not geared up to handle entire populations who are victims of ethnic cleansing.
Those who are not in the UN refugee camps live in constant fear of deportation, according to the above report. They are also dependent on those who are officially registered with the UN for the essentials of life.
Bangladesh, according to the Huffpost, is trying to make life for the Rohingyas so difficult that they will leave of their own accord. We have a term for this enhanced internal enforcement policy in the United States. It is known as "self-deportation".
How well has that been working in America? In Southeast Asia, it has only led to revenue for the smugglers and to the tragedies at sea which the world is now beginning, however reluctantly, to face up to.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School. He has been helping employment-based and family-based immigrants obtain work visas, green cards and US citizenship for more than 30 years.
Roger believes that every immigration case requires not only a thorough understanding of the technical legal rules involved, but also a strong commitment to upholding basic human rights. His email address is email@example.com
Updated 05-26-2015 at 07:39 AM by ImmigrationLawBlogs
Update: May 20, 6:35 pm
In yet another horrifying report of inhumanity shown by the government forces of a Southeast Asian country toward the stranded Rohingya and Bangladeshi boat people who had been abandoned and left to die of starvation by human traffickers, Huffington Post reports on May 20 that, according to one of the survivors, the Thai navy threatened to shoot at a boat full of refugees 10 minutes after handing over supplies to them.
The report says that 10 passengers, including women and children, had already died of starvation.
My original post follows:
Amid news reports that Indonesia and Malaysia are finally agreeing to accept at least some additional starving Rohingya refugees from Burma who have been abandoned at sea by human traffickers,
Burma has offered to provide "humanitarian assistance" for these refugees, who fled that same country because of ongoing persecution and denial of citizenship rights.
Burma still refuses, however, even to mention the Rohingyas by name. This takes persecution to a new level, where the victims become "unpersons", in addition to other denials of basic rights.
Meanwhile the Burmese opposition party, National League for Democracy, announced support for "human rights" for the Rohingyas, while making it clear that its definition of that term does not include citizenship rights for this Muslim minority, which has been living a marginalized existence in Burma, a Buddhist country, for generations.
Thailand's independent Nation newspaper quotes Nyaw Win, an opposition party spokesman, as stating:
"I said human rights for all of these people, not citizenship rights."
He did not explain, how, given Burma's record of persecution of the Rohingyas, (whom his above statement also does not mention by name) they can be afforded human rights without citizenship rights.
While Burma is far away from America, both in terms of distance and in recognizing democratic values, Nyaw Win's statement also resonates in the US, where anti-immigrant organizations and politicians are mounting a campaign to change (or distort) our Constitution in order to deny birthright citizenship to millions of US-born Hispanic and other minority children, based on their parents' lack of legal immigration status.
These children would, under this proposal, be illegal in the US from the moment of birth, and therefore, under our laws, subject to deportation. And where would they go?
Since almost every country in the Western Hemisphere, in common with the United States, recognizes citizenship on the basis of country of birth, these children would in all likelihood not be recognized as citizens of their parents' native countries and would, effectively, be rendered stateless.
Is America seriously considering creating millions of "Rohingya" children on our own soil?
The Thailand Nation report (May 20) is available at:
Updated 05-20-2015 at 05:37 PM by ImmigrationLawBlogs
This is the latest update on the appalling, unbelievable inhumanity being shown by the governments of Indonesia, Malaysia and Thailand in continuing to turn away hundreds, if not thousands, of dying boat refugess who have been at sea for weeks, if not months, and many of whom are trying to escape intolerable persecution and denial fo basic human rights, including the right to citizenship, in Burma.
According to the following May 18 BBC report, Indonesia has ordered its own fishermen, who were showing humanity that their leaders evidently lack, to stop rescuing Rohingya and Bangladeshi boat peope, now matter how terrible their circumstances are at sea.
It may be true, that as the report indicates, the Bangladeshi migrants, unlike the Rohingya from Burma, may be economic migrants rather than refugees under international law.
But do they not also have a right to live? One can only hope that the international community will sanction the the above four SE Asean countries for the barbarism of their leaders in creating and/or aggravating this crisis.
The report is entitled:
Asia boat migrants: UN despair over lack of rescues
I want to thank my colleague Nolan Rappaport for bringing this report to my attention. On his behalf, I will also enter his disclaimer that forwarding a news item or article does not indicate that he has any opinion, one way or the other, about the content.
Updated 05-20-2015 at 04:50 AM by ImmigrationLawBlogs
In my May 12 post: Taking Away Birthright Citizenship: First Chinese, Now Latinos?, I raised some questions about the motivations behind the movement by restrictionist legislators and organizations to revisit and possibly revoke the guarantee of automatic US citizenship to virtually every child born in the United States contained in the 14th Amendment to the Constitution and upheld in the landmark Supreme Court decision of US v. Wong Kim Ark (1898).
I did so in the context of the hearings on this issue by a subcommittee of the House Committee on the Judiciary which began on April 29, and, particularly, in the opening statement by the Judiciary Committee Chairman, Bob Goodlatte (R-Va).
My May 12 comments focused primarily on the issue of whether there was any valid reason to question whether the 14th Amendment confers automatic birthright citizenship (which I will refer to as "ABC" below) on virtually every child born in the US regardless of the parents' status (also known as jus soli). My comments also questioned whether there was any reason to doubt the prevailing consensus of opinion that the leading 1898 Supree Court Case of US v. Wong Kim Ark upholds the above broad interpretation of the 14th Amendment.
My conclusion was that the language and clear purpose of both the 14th Amendment and the Wong decision was to eliminate any vestige of the racial discrimination which was declared to be part of our citizenship laws in the Supreme Court's notorious Dred Scott decision in 1857. Therefore, any movement to revisit or reinterpret the 14th Amendment and the Wong decision has to be looked at from the standpoint of asking whether the motive is to weaken existing legal protections against racial discrimination with regard to eligibility for American citizenship.
A legal scholar, Katherine Culliton Gonzalez, persuasively argues in a recent article in the Harvard Human Rights Journal that one of the major consequences of taking away ABC would be to discriminate against US- born children of Mexican and other Latin American parentage, as well as to violate their fundamental human rights under international law.
See: Born in the Americas: Birthright Citizenship and Human Rights, 25 Harvard Human Rights Journal 127 (2012)
This article is well worth reading for anyone who is in interested in the background and significance of the Wong Kim Ark case, as well as in gaining a fuller understanding of the 14th Amendment's guarantee of birthright citizenship.
It also refutes the argument being promoted by some anti-immigrant organizations that the US is somehow out of step with the rest of the world because we recognize automatic birthright citizenship for every child born in this country, regardless of parentage.
To the contrary, this article shows that the US, and almost all of the other nations in the Americas, are more in tune with international human rights standards with regard to birthright citizenship than the countries which do not recognize. or which restrict. this basic human right.
To be continued in a forthcoming post.
Roger Algase is a New York lawyer and graduate of Harvard College and Harvard Law School who has been representing employment based and family based immigrants for more than 30 years. He believes that every immigration case requires not only a thorough mastery and understanding of the applicable law, but also a stong committment to upholding human rights.
Roger's email is firstname.lastname@example.org
Updated 05-18-2015 at 04:17 PM by ImmigrationLawBlogs