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  1. Trump Faces Lawsuits From Both Sides of Immigration Divide: Will His Agenda End, Not With a Ban But a Fizzle? Roger Algase

    According to the latest news reports, Donald Trump is now facing the possibility that his administration may have to defend against lawsuits from both ends of the immigration spectrum, left and right.

    POLITICO reports on June 29 that the State of Hawaii is suing in federal district court to challenge the Trump administration's guidelines to US consulates in the six almost 100 percent Muslim countries affected by the president's entry ban order ("Muslim ban").

    According to the report, Hawaii is contending that these guidelines take an erroneously narrow view of what constitutes a bona fide family relationship within the meaning of the Supreme Court's June 26 decision reinstating part of the Muslim ban order temporarily for the next 90 days.

    The same report also states that at the last moment, just before the ban was about to go into effect, the State Department suddenly changed its position to state that fiances of US citizens will now be considered as having a bona fide relationship with the US for the purpose of being exempt from the ban order.

    However, while the DOS guidance, which was issued behind the scenes and not initially made public, defines step-relations and in-laws of U.S. citizens as people with a bona fide relationship for the purpose of exemption from the ban, it excludes grandparents of US citizens from this exemption.

    Since the whole purpose of Trump's ban order was ostensibly to protect against terrorists, this has led to justified questions about why grandparents of US citizens are deemed to be more dangerous to the US or more likely to commit terrorist acts than in-laws or step-relations are.

    As a result, the BBC reports that many people have posted pictures of their grandparents under the mocking Twitter hashtag #grandparentsnotterrorists

    It would appear that Trump's Muslim ban attempts, which began this past January in a momentous atmosphere of Sturm und Drang, are now ending as farce.

    In his poem "The Hollow Men", T.S. Eliot famously wrote:

    This is the way the world ends
    Not with a bang but a whimper.

    Are Donald Trump's attempts to keep Muslims out of the United States at all costs, which were launched with such great fanfare in December 2015 and meant to be actualized by his executive orders beginning in January of this year, now ending not with a ban but a fizzle?

    In another development, Univision reports that the Texas Attorney General, Ken Paxton, joined by political leaders of nine other Republican-controlled states, is threatening to sue the Trump administration if it refuses to phase out the DACA program.

    For the full story and a link to the text of their letter to Attorney General Jeff Sessions, see:

    Evidently, even whatever vestiges of common sense, compassion and humanity toward Latino and other minority immigrants there are still remaining in the Trump administration, which, commendably, has so far refused to rescind DACA and is still issuing new DACA permits, are anathema to the nine Republican state attorneys general (and one governor) who cannot seem to tolerate the idea of allowing non-white immigrants, even those who were brought to the US by their families as children through no choice or fault of their own, and who are American in all but documentation, to remain in the United States.

    It will be interesting to see if AG Sessions, who, as a Senator was one of the fiercest opponents of both legal immigration and of the unauthorized variety in the entire U.S. Congress, will be willing to defend DACA if the 10 state officials involved make good on their threat to sue.

    But whatever happens with the DACA lawsuit, and whether Trump gets sued by state officials in his own party or not, one point is clear;

    The Republican party has a very big problem with race and immigration which goes back to a time long before Donald Trump came on the scene, more than 50 years back, all the way to 1965.

    If this party doesn't fundamentally change its attitudes toward racial minorities in the US of every stripe, the GOP's immigration race problem, arguably amounting to a sickness in its inner core, may continue for a long time to come, well after Trump's time in the White House is over.

    See POLITICO's excellent, perceptive August 2016 report:

    The 1965 Law That Gave the Republican Party Its Race Problem

    My best 4th of July weekend wishes to all Americans, and to all those who are not yet Americans but who wish to become Americans and are qualified to do so under our laws; as well as all those who are American in spirit and are contributing to this country and our society, regardless of their citizenship or status.

    Roger Algase
    Attorney at Law

    Updated 06-30-2017 at 08:57 PM by ImmigrationLawBlogs

  2. IER Settles Immigration-Related Discrimination Claim Against Panda Express

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Justice Department announced it reached a settlement agreement with Panda Restaurant Group, Inc. (Panda Express), a restaurant chain with over 1,800 locations in the United States. The agreement resolves an investigation into whether Panda Express discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA) when reverifying their authorization to work.

    The investigation concluded Panda Express unnecessarily required lawful permanent resident workers to re-establish their work authorization when their Permanent Resident Cards (green cards) expired, while not making similar requests to U.S. citizen workers when their documents expired. The investigation also revealed that Panda Express routinely required other non-U.S. citizen workers to produce immigration documents to reverify their ongoing work authorization despite evidence they had already provided sufficient documentation. The antidiscrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.

    Under the settlement, Panda Express will pay a civil penalty of $400,000 to the United States, establish a $200,000 back pay fund to compensate workers who lost wages due to the company’s practices, undergo IER-provided training to HR employees on the anti-discrimination provision of the INA, revise employment policies, modify its electronic I-9 system, train HR personnel on the M-274 Handbook for Employers and the USCIS E-Verify manual, and comply with departmental monitoring and reporting requirements for three years.

    This settlement is the largest to date in calendar year 2017. Employers should be trained by immigration counsel on a regular basis of immigration compliance issues.
  3. Travel ban issue will be moot before SCOTUS date — here's why. By Nolan Rappaport

    © Getty Images

    President Donald Trump filed an appeal with the Supreme Court of adverse decisions in two circuit courts on his March 6 executive order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

    He also petitioned the court for a temporary stay of injunctions issued by the circuit courts that had restricted the implementation of the executive order. In a decision on Monday, the court granted the petition in part, staying the injunctions to the extent that they apply to foreign nationals abroad who have no connection to the United States. The stays are in effect only until the case is decided on its merits.

    Pertinent precedent

    In Kleindienst v. Mandel, the court held that Congress has plenary power to establish policies for the exclusion of aliens from entering the United States, which it can delegate conditionally to the executive branch. When the executive branch has used such authority to exclude aliens “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.

    The absolute nature of the delegation at issue in this case is reflected in the language of the statutory provision that conferred it on the president in Section 212(f) of the Immigration and Nationality Act when it was enacted in 1952:

    "Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants..."

    Are the travel ban issues moot?

    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.

    Updated 06-28-2017 at 05:02 PM by ImmigrationLawBlogs

  4. Muslim Civil Rights Lawyer: Supreme Ct. Entry Ban Decision Promotes Discrimination Against All Muslims. Are Rights of Any Americans Safe? Roger Algase

    Update: June 28, 5:54 pm:

    Some legal analysts have suggested that the Trump administration can easily get around the Supreme Court's exception to its decision to uphold Trump's Muslim ban order until the Court's October term begins. The way to do this, according to this argument, would be for the administration to issue consular "guidance" memos which would in effect instruct consular officers to refuse visas to citizens of the affected six countries, even when the applicants clearly meet the standard of having bona fide ties with the US in order to qualify for the exception to the ban as enunciated by the Supreme Court in its June 26 decision.

    Then, the administration could rely on the doctrine of non-reviewability of consular officer visa decisions, set forth by the Supreme Court in Kerry v. Din (2015).

    This argument is set forth, for example, by Santa Clara University Law Professor Pratheepan Gulasekaram as quoted in a June 28 Slate article

    How Trump can get his Muslim Ban

    The flaw in this argument is that, under Kerry v. Din, the doctrine of non-reviewability of consular visa denial by the courts is not absolute. It is limited to cases in which there is no "affirmative showing of bad faith" - a standard set forth by Justice Kennedy writing for the plurality in that case.

    Admittedly, this is a standard which is not easy to meet. Very possibly, Justice Kennedy may not have contemplated that the behavior of any rational president or administration in connection with refusing admittance to the US to any immigrants or classes of immigrants would be egregious enough to put this standard into play.

    But that was before Donald Trump became the president.

    My original comment appears below.

    In the June 27 issue of Immigration Daily, I wrote that the Supreme Court had given Donald Trump a "Pyrrhic" victory, or at best (from the president's standpoint) a very incomplete one, by upholding Trump's six almost 100 percent Muslim country entry ban (hereinafter "Muslim ban" - not some vapid and meaningless euphemism such as "travel ban", whatever that means) for 90 days (which Trump will without the slightest possible doubt seek to extend for as long as he can - either in its current form or under the guise of his latest "Extreme Vetting" mantra - whatever that means), but with a very significant loophole.

    The loophole, as I explained in my comment and as numerous other writers have also pointed out) was that anyone from the six banned countries with bona fide ties to the US will be exempt from the ban entirely.

    Since the Supreme Court gave at least some specific guidance as to what it meant by the term bona fide ties to the US, it would appear from its decision that a substantial percentage of the people from the six countries who are able to receive visas from US consular posts in the first place will be eligible to enter the US without being affected by the ban. (My guess was 95 percent - perhaps overly optimistic from the point of view of the affected citizens of the six almost 100 per cert Muslim countries).

    This is because, few if any applicants in the six targeted countries would normally be able to have their visa applications approved unless they had substantial ties to the US in the first place.

    Therefore, as I argued in my June 27 comment (which was posted on on June 26 - see below), leaving the president's ban in place for people who do not have strong ties to the US would arguably not affect very many people, since very few of those people would have been able to get visas even without the ban.

    However, no matter how much the president may have been disappointed - or "angered" - as he reportedly was by a lower court decision blocking his ban order - see: - by the thought of his administration's still being required by the Supreme Court decision to accept hundreds, or thousands, of people belonging to a group of people whom the president has made clear on numerous occasions that he would prefer not to admit the United States - a gens invisum (despised group of people) to use Virgil's famous phrase about Trojan refugees in Book 1 of the Aeneid - namely people who belong to the Muslim religion - there is still one extremely uncomfortable reality coming from that decision.

    That reality is that even though the Court has carved out a significant loophole to its order upholding the ban decision, it still upheld the president's religious ban in principle. My above June 27 comment did not fully deal with this issue.

    However, a Muslim civil rights lawyer and Harvard Law School graduate, Amir H. Ali, writing in The Guardian on June 27, has focused on the critically important underlying message that Trump conveyed to America and the world by issuing the Muslim ban orders in the first place, and which the Supreme Court confirmed by upholding the ban, even in part.

    What is this underlying message in the Supreme Court's June 26 decision upholding the president's Muslim ban in part? It is a very simple one: that it is OK for the U.S. government to discriminate against Muslims because of their religion.

    This means not just Muslims from the six (originally seven targeted countries. It means all Muslims.

    And this leads to another fundamental question: If a country adopts a policy restricting the freedom of one group of people to exercise their basic rights, including freedom of religion, how secure will the basic rights of all other citizens of that country be, even if they are not members of the disfavored group (in this case, Muslims)?

    Ali writes, in his above article:

    "To understand the impact of the supreme court's decision, it is important to appreciate what it is like to be Muslim in the U.S. today: that your religion exposes to to the all-but-accepted-reality of routine deprivations of liberty and privacy each time you present yourself at the border.

    This discrimination (whether subconscious or otherwise is an unwritten condition of your apparent offense of Flying While Muslim."

    Ali continues:

    "And it [the fear of discriminatory treatment at the US border] is rational even when the strength of your connection to the U.S. means that you cannot lawfully be denied entry. There are myriad examples of American Muslims - people who have an unqualified and irrevocable right to enter the US - being met at the border by practices such as discriminatory religious questioning, invasive cellphone searches and even temporary denial of entry."

    And he concludes, in a stinging but well-justified rebuke to the Supreme Court in its June 26 decision:

    "This point appeared to be lost on the court, which seemed to believe that affording discretion to deny entry to those people who fail its test will have no impact on the people who will pass the test. That reasoning reflects a fundamental misapprehension of what it is like to arrive in the US as a Muslim today.

    To be sure, the court's decision is far more tolerable than reinstating the travel ban in full, as the three dissenting judges would have done. But when carving lines into Trump's travel ban, the court may well have unleashed some of the vitriol that lies directly beneath."

    The last sentence above is the key. There cannot be the slightest rational doubt, based on the president's own statements and actions, both before and after taking office as president that his Muslim country entry ban orders (a much more accurate description than "travel ban". as I have mentioned above) were based on vitriol against Muslims purely because of their religion.

    The 4th Circuit majority, a little more politely perhaps, referred to this as "animus" instead, but using a Latin word instead of an English one does not change the point.

    During the presidential campaign, then candidate Trump infamously said (in March 2016): "I think Islam hates us".

    Can anyone seriously argue that Trump's Muslim ban orders (after becoming the second president in this century to be elected after losing the popular vote) were intended to accomplish any other purpose than to "return the compliment"?

    And is that March 2016 statement, which was obviously the real motivation for Trump's Muslim ban orders, including the original, even more sweeping seven country ban which Trump now states that he regrets having "watered down", in essence any different from another statement, about a different but well known religious group made some 80 years ago - a statement that will be infamous as long as human history endures so as to need no translation? I refer to Joseph Goebbels, writing in support of Adolf Hitler's persecution of the Jews in the 1930's:

    "Die Juden sind unser Unglueck!"

    Roger Algase
    Attorney at Law

    Updated 06-28-2017 at 04:57 PM by ImmigrationLawBlogs

  5. Return of the Travel Ban

    Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President's executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order ("EO"). The new EO was also severely limited by the courts.

    You'd think a bunch of people in burkas would be a bit more sympathetic to Muslims.

    But now, the Supreme Court has spoken, and the EO is back, at least in part. So what's the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC--they are a terrific organization that does yeoman's work in all areas of the immigration field):

    "[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have 'a credible claim of a bona fide relationship with a person or entity in the United States.'

    "What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a 'close familial relationship' with someone already here or if they have a 'formal, documented' relationship with an American entity formed 'in the ordinary course' of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

    "Who is likely to be allowed to enter the United States?

    • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
    • Individuals with visas coming to live or visit with family members: The Court’s order is clear that individuals who 'wish [] to enter the United States to live with or visit a family member' have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
    • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
    • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
    • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically--I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.

    "Who may have trouble entering the United States?

    • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Court’s decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
    • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically--it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment]."

    As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation--how the Department of Homeland Security ("DHS") interprets and applies the Supreme Court decision in actual, real-life cases.

    In that regard, I agree with Justice Thomas, who "fear[s] that the Court's remedy will prove unworkable" and will invite a "flood of litigation." Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

    In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court's decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that's not a great situation to be in.

    Finally, yesterday's decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court's decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

    All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

    Originally posted on the Asylumist:
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