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  1. Trump's Latest Muslim Ban, Immigrant Raids and Mass Deportation Policies Put America's Democracy in Danger. Roger Algase

    The following comment has been revised and rewritten as of February 20 at 723 am:

    In the latest development in the controversy over the president's January 27 Muslim ban order, which, in Orwellian fashion, the White House insists is not specifically directed against Muslims, even though an estimated 99 percent of the people in the seven countries affected by the order belong to that religion, the AP and the Washington Post both report that Donald Trump is planning to "replace" his original seven Muslim country travel ban order with a new order which would contain the same ban on entry against the almost 200 million citizens of the seven countries, close to 99 percent of whom just happen to be Muslims, but with a few minor, essentially cosmetic, tweaks.

    http://www.kentucky.com/news/busines...133767709.html

    The first tweak, according the AP and WP reports, is that the new ban would not apply to US permanent residents who are citizens of the seven countries. However, this is a meaningless change.

    After the initial chaos, confusion, fear and anxiety caused by lack of clarity from the White House over whether the original January 25 executive order applied to green card holders or not, the White House had already issued a "clarification" (reportedly over the objections of Senior Advisor Stephen Bannon, who is widely considered to be one of the main instigators of the entry ban order in the first place) stating that US permanent residents from the seven countries were exempt from the ban.

    In its briefs filed with the 9th Circuit, the DOJ also took the position that the ban did not apply to green card holders from the seven countries. Therefore this first reported tweak would be no real change at all. See also:

    http://www.pressherald.com/2017/02/1...ted-this-week/

    Another tweak reported by the AP and the WP is that citizens of the seven banned countries is that citizens of the above countries who have already been granted visas, or who are already in transit to the US with visas (which one is not clear) will be allowed to enter the US.

    Dual citizens of the affected countries may also be exempt from the revised ban. However, these changes will, at most, affect only a very small percentage of the nearly 200 million citizens of the above countries who are still being being barred from the US solely because of their religion.

    (I will not dwell on the absurd argument that the above ban is not really a Muslim ban because there is a tiny handful of non-Muslims also affected by the ban. If there has been any presidential finding, or rational basis ofr such a finding, that the 1 per cent or less of citizens of these countries who are Jews or Christians pose a danger to the US, I have not seen it.

    The ban is clearly not directed against non-Muslims, even if a very few may turn out to be "collateral damage" by being denied visas also.)

    Therefore, the basic authoritarian premise of the Muslim ban, that one man, the president, accountable to no one but himself (as the DOJ has claimed in its 9th Circuit briefs) has unlimited power to ban as many people as he wants for any reason he sees fit, remains in place.

    As The Guardian reports:

    "The goal of the new [Muslim entry ban] order is to bolster a signature initiative against ongoing legal and constitutional scrutiny, rather than revise it in a substantive fashion, relax its restrictions or consider any deleterious consequences it has on national security, according to Guardian sources."

    https://www.theguardian.com/us-news/...ional-security

    When this attempt to use authoritarian power is looked at in the context of the increased police state measures that the Trump administration is putting into effect to step up mass arrests and deportations, in addition to the fear and panic in immigrant communities throughout America caused by stepped up ICE raids against unauthorized immigrants with no criminal records which took place last week, the danger to our democratic institutions becomes even greater. See:

    http://fortune.com/2017/02/11/immigr...aids-us-cities

    See also:

    Washington Post, February 18:

    Memos signed by DHS secretary describe sweeping new guidelines for deporting illegal immigrants

    I will discuss the details of these police atate measures, and the equal protection and due process issues they raise, in an upcoming comment.(Go to Google for a link to this report.)

    But while the Muslim ban clearly raises serious questions concerning the extent, id any to which our laws and Constitution permit unfettered one-man control over over our immigration system, or a major part of it, under the Plenary Power doctrine and INA Section 212(f), there is an even greater danger to our democracy that goes beyond the four corners of the Muslim ban executive order itself.

    This danger arises from the way that the president has tried to delegitimize opposition to the Muslim ban order by the courts and the media, by claiming that anyone who opposes the ban is in effect supporting terrorists and will bear responsibility for any future attack that might take place in America. See:

    http://www.alternet.org/human-rights...ard-terrifying

    As the above salon.com/altenet.org article states, Trump's attacks on the courts in connection with the Muslim ban order:

    "...should utterly horrify every champion of democracy, whether on the left or right end of the political spectrum."



    To be continued.

    Roger Algase
    Attorney at Law


    Updated 02-20-2017 at 08:07 AM by ImmigrationLawBlogs

  2. Are White House Denials of Plan to Use National Guard for Immigrant Roundups, With All Its Disturbing Memories, Believable? Roger Algase

    The following comment has been revised and updated as of February 18 at 4:00 pm:

    The White House has vigorously denied an AP report that the Department of Homeland Security has been considering using the National Guard to assist in rounding up unauthorized immigrants in 11 Mexican border and contiguous states extending as far north as Oregon and as far east as Louisiana.

    However, it is obvious that a leaked DHS memo dated January 25 containing such a provision was drafted with a great deal of care - much more, quite clearly, than was used in preparing the president's discredited seven nation Muslim entry ban order (along with banning the tiny percentages of non-Muslims living in the affected countries as window dressing which fooled no one, about the order's real purpose - least of all the 9th Circuit Court of Appeals panel which put the ban on hold).

    There can be no serious doubt that the January 25 DHS memo, whether it will ever be officially adopted as policy or not, was meant to be taken very seriously as guidance for immigration enforcement purposes, and that the White House claim that the memo was a basis for discussion only does not ring true

    For a report on the White House denial that using the National Guard is beng considered as policy, and for a link to the full text of the memo, see:

    https://www.theguardian.com/us-news/...emo-not-policy

    The context of the memo, which deals exhaustively and in great detail with many other aspects of immigration enforcement, including treatment of unaccompanied minors, "catch and release", credible fear determinations for asylum seekers, and reviving INA section 287(g) agreements between the DHS and the states in general, not just with respect to the National Guard, gives every sign that this memo was carefully drafted for the purpose of governing the details of many aspects of immigration enforcement policy.

    The White House denial that this memo was never meant to go into effect and was a draft only, is very difficult to believe under the circumstances, and the fact that it was kept secret until someone in the administration evidently had the courage to leak it to the media is even more disturbing.

    If America is to become a country where immigration enforcement policy is determined by secret directives, than we might be even closer to the spirit of another enforcement agency in a different country mentioned below.

    I quote from the relevant part of the leaked DHS January 25 memo:

    "D. Expansion of the 287(g) program to Include State Guard Units in the Border Region

    Section 287(g) of the Immigration and Nationality Act authorizes me [DHS Secretary John Kelly] to enter into in agreement with a state or subdivision thereof to perform the functions of an immigration officer...

    Pursuant to Title 32 of the united States Code, State National Guard components are employees of their respective states and are under the command of their Governors when they are not in federal service. Based on their training and experience, these men and women are particularly well-suited to assist in the enforcement of federal immigration law and augment border security operations by Department components...

    Additionally, I am directing the Commissioner of CBP and the director of ICE to immediately engage with the Governors of the States adjacent to the land border with Mexico and those States adjoining such border states for the purpose of entering into agreements under section 287(g) of the INA to authorize qualified members of the state National Guard...to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States."

    It is the words: "investigation, apprehension and detention of aliens in the United States" that are a particular cause for concern. One cannot help be reminded of other militia members who were used for the same purpose against other people who were not wanted by the regime in another well known country.

    The following extract is from an article by the United States Holocaust Memorial Museum:

    "In the months after Hitler took power, SA and Gestapo agents went from door to door looking for Hitler's enemies. They arrested Socialists, Communists, trade union leaders, and others who had spoken out against the Nazi party...By the summer of 1933, the Nazi party was the only legal political party in Germany...Democracy was dead in Germany."

    Sorry, I cannot find a working link - please Google:

    United States Holocaust Memorial Museum: Nazi Terror Begins


    The above does not in any way imply that the dedicated men and women of the National Guard who are selflessly serving their States and their country in any way resemble the fascist thugs who made up Hitler's storm troopers (SA) and Gestapo.

    But using any part of our military to engage in mass roundups and incarceration of civilians of any kind, regardless of what status they may have (or lack) in the United States, leads in the same direction as the activities described in the above Holocaust Memorial Museum extract, and can have the same effect on America's democracy as those activities did on democracy in Germany.

    This danger is especially apparent when the military or militia forces in question are under the ultimate control of a leader who has so little respect for democracy as to call a free press the "enemy" of the nation, as Donald Trump has just done - and as Germany's leader did when he eliminated the free press after taking power in 1933. See:

    http://www.latimes.com/politics/wash...htmlstory.html

    As Senator John McCain said on February 18, suppressing the free press is "how dictators get started".

    http://www.thehill.com/blogs/blog-br...rs-get-started

    To be sure, as David Nakamura writes in the February 17 Washington Post, (link not available - please use Google) the administration is still accepting DACA applications, and Trump is clearly not entirely trusted by some anti-immigrant groups for equivocating on revoking what they call this "executive amnesty".

    But the signs that America may be entering an era of anti-immigrant repression that could make comparison with "enforcement" tactics used in 1933 Germany against Jews and many other people whom the regime considered undesirable seem entirely reasonable are growing under the Donald Trump presidency, and they are growing with a troubling speed and intensity.
    ______________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been represenrting mainly skilled and professonal immigrants with work visa and green card applications for more than 35 years. Roger's email address is algaselex@gmail.com

    Updated 02-18-2017 at 04:06 PM by ImmigrationLawBlogs

  3. SEN. HATCH OFFERING BILL TO INCREASE H-1B CAP

    by , 02-17-2017 at 11:08 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    Computerworld is reporting that Sen. Orrin Hatch (R-UT) is preparing an H-1B bill, which could raise the H-1B cap as high as 195,000 visas. The current H-1B cap ceiling is 85,000, of which 20,000 are reserved for graduates of at least a US Masterís degree program.

    Sen. Hatchís bill
    reportedly is an update of his 2015 I-Squared Bill. The I-Squared bill was first offered in 2013. The 2015 bill contained many excellent provisions for the IT industry and H-1B employers. It remains to be seen which of these provisions will be in the 2017 version of the bill. Sen. Hatch is to be applauded for his long-standing belief in the employment-based immigration system and the contributions made by employment-based visa holders.

    The 2015 bill included these provisions:

    -provided H-4 spousal work authorization.
    -reduced the ability of the USCIS to issue harassing H-1B RFEs.
    -gave an H-1B worker a 60 day grace period at the conclusion of H-1B status.
    -allowed H-1B, L-1, O-1, E-1, E-2, and P-1 visa holders the ability to have their visas extended in the US.
    -increased green card numbers.
    -eliminated the per-country immigrant visa quota.
    -created funding for US training programs in STEM fields by increasing USCIS filing fees.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.

    Updated 02-17-2017 at 12:59 PM by CMusillo

  4. Is BANNON's Muslim BAN Still ON? DOJ Refuses to Back Down in New 9th Cir. Brief, While Trump Prepares Cosmetic Changes For New Ban Order. Roger Algase

    Update: February 17, 3:45 pm.

    In a February 17 story, The Guardian provides more details about how national security officials are being shut out of decision making regarding the Trump/Bannon revised US travel ban against seven overwhelmingly Muslim countries, just as they were shut out of the original one. The Guardian writes:

    "The goal of the new order [travel ban] is to bolster a signature initiative against ongoing legal and constitutional scrutiny, rather than revise it in a substantive fashion, relax its restrictions or consider any deleterious effect it has on national security, according to Guardian sources."

    The Guardian continues:

    "The process means domestic political concerns are given greater priority and consideration of their national security impact is marginalized despite the impact on US relations with much of the world."

    https://www.theguardian.com/us-news/...ional-security

    What does this say about the good faith of the Trump administration's claims in its original and latest briefs before the 9th Circuit Court of Appeals arguing that the president's decision to impose the ban is not reviewable by the courts because the president purportedly has the sole power to make national security determinations relating to immigrant entry to the United States?

    The more information that comes out showing that the "national security" justification for Trump's seven country ban is not genuine, the more it becomes evident that the 9th Circuit's decision to look behind the DOJ'a "national security" claim and conduct fact finding as to whether the ban was based on religious/racial animosities instead was a sound one.

    My original comment appears below.

    The Department of Justice, evidently unable to put up a defense of Trump's Stephen Bannon inspired Muslim ban immigration order that it could expect to win in court, has settled instead a strategy that, on the one hand, in effect asks the 9th Circuit Court of Appeals to withdraw its TRO against the ban order on the grounds that the order is being replaced by a more "limited" one, while, on the other hand, it argues on the basis of clearly misleading statements that the original order was legally valid and does not need to be withdrawn.

    To top it off, according to POLITICO, the administration is preparing a new, more "limited" order which would in fact make only cosmetic changes in the discredited January 27 order.

    I will discuss this last point first. According to the POLITICO story, the new, "narrower" seven country Muslim ban order would exempt citizens of the seven targeted countries who already are in the US with legal visas. This would allow them to travel without fear of not being allowed to return.

    The new EO would also, again according to POLITICO, clarify that US permanent residents from the seven countries are exempt from the scope of the entry ban, something that, to put it very charitably, was less than clear when the original order was introduced. For the full story and a link to the DOJ's latest brief filed with the 9th Circuit, see:

    http://www.politico.com/story/2017/0...s-court-235106

    These changes, no doubt, are welcome, because they make clear that people from the seven affected countries who have already been legally admitted to the US and who have connections with this country will be allowed to continue with their lives in the United States undisturbed by the president's order.

    But, if the above POLITICO report about the proposed replacement executive order is accurate, the new order would still ban the almost 200 million citizens of the affected seven 99 percent or close to it Muslim countries (and other Muslim countries which the current order clearly contemplates adding to the ban, if one reads Sections 3 and 4 of the order carefully) who have never been to the United States.

    In other words, if the above report is correct, the new proposed ban would still be aimed as keeping as many Muslims out of the United States as possible, based on the underlying assumption that their religion alone automatically makes them a danger to the United States.

    There would be no real change in this policy, promoted by Trump's Senior White House Adviser Stephen Bannon, and his recently fired National Security Adviser, Michael Flynn, both of whom are well known for their view that America is in an ideological war, or "War of Civilizations", with the Muslim religion.

    Nor, as the DOJ's latest brief that was filed with the Court on February 16 makes clear, has there been any change in the administration's argument that the president has unlimited power to prohibit any immigrants or groups of immigrants he wants from coming to the US.

    Finally, as will be clear from the following discussion of the DOJ's latest brief, that there has been no backing down from the government's indefensible claim that Trump's ban affecting almost 200 million people from countries with close to, or in some cases more than, 99 per cent Muslim populations, is not based on religion, but on flimsy, also largely cosmetic, "national security" grounds.

    I will discuss these latter two issues in more detail in a forthcoming comment.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com



    Updated 02-17-2017 at 05:59 PM by ImmigrationLawBlogs

  5. Hateful Words and Helpful Actions

    After nearly 3,000 Americans were murdered on September 11, 2001, President Bush spoke to the nation and to the world. He assured usóMuslim and non-Muslimóthat American was not at war with Islam. Would that President Trump had spoken similar words before instituting his immigration ban on seven majority-Muslim countries. But that is not Mr. Trumpís style.
    Lord of the Zings: The President's hateful words may be worse than his harmful EOs.
    The resulting firestorm may have been pleasing to the Presidentís most ardent supporters, who seem to relish the sight of suffering families and damaged government institutions, but for those of us concerned about national security, morality, and the rule of law, the Presidentís Executive Orders (ďEOsĒ) were a frightening development.

    The problem, though, was not so much the EOs themselves, the effect of which is not immediately obvious, and in any case, portions of which have been blocked by the courts, but rather the divisive rhetoric attached to the orders. Let me explain.

    The EOs, which are currently blocked by the courts, would bar nationals of Iraq, Iran, Syria, Yemen, Sudan, Somalia, and Libya from entering the United States for 90 days. All refugees would be barred from entering the country for 120 days, and Syrian refugees would be barred indefinitely. On its face, this is not a Muslim ban. If you are from one of the listed countries, you are barred from entry, regardless of your religion, and if you are a Muslim person from another country, you are not barred from entry. But to me, this is a case of ďThatís what it says; thatís not what it means.Ē

    So what does it mean? First, in the context of campaign statements disparaging to Muslims, and some statements by Trump surrogates, itís easy to see why many are interpreting the EOs as a first step towards a more general Muslim ban. Rumors are swirling that the list of countries will be expanded, to include more Muslim nations, such as Pakistan and Afghanistan. In addition, the EOs direct the government to track and publish information about crimes committed by aliens, with a particular emphasis on people convicted of terrorism-related offenses, people who have been ďradicalized after entry,Ē and ďgender-based violence against women or honor killings.Ē Further, the EOs call for a ďrealignmentĒ of refugee admissions to focus on refugees who are from a ďminority religion in the individualís country of nationality.Ē Itís hard not to view all this as targeting Muslims.


    But perhaps Iíve gotten it all wrong. There have been counter-arguments advanced by the Presidentís defenders. After all, the EOs do not directly refer to Muslims, and the listed nations are either chaotic (Iraq, Somalia, Yemen, Libya), malignant (Iran) or both (Sudan, Syria). Also, as the EOs require, we should be keeping track of aliens who engage in criminal behavior or who support or commit terrorism (indeed, I myself have argued for such transparency in this blog).


    But here is why I donít buy the counter-arguments and why I believe the EOs are designed to target Muslims: The President is very aware that many people view the orders as a Muslim ban, but he has said nothing to allay the fears of Muslims and immigrants in the U.S. or our Muslim allies abroad. He could easily have issued these same exact EOs and avoided the chaos by better explaining his intentions. He chose to not do that. Maybe itís me projecting, but I canít help but feel that he and his core staff are getting some sadistic pleasure watching the suffering and confusion that they are causing. I imagine they also view the mess theyíve made as evidence that they are fulfilling their promises to get tough on immigration and to protect the homeland.


    It almost goes without saying that things could have been done differently. The ban could have been explained as a necessary and temporary policy adjustment to enhance our national security. President Trump could have expressed his sorrow that such orders were needed, and he could have reassured people that the ban was only temporary. He could also have made some positive statements about immigrants and Muslims, especially those who are serving with us in the war on terror. But he did not. So all of us are left to wonder whether this is a short-term measure targeting only the listed countries, or whether it is the beginning of something bigger. For American Muslims and immigrants, and for our allies abroad, the uncertainty of the EOs is probably worse than the EOs themselves.


    The question, though, is what do we do from here? At this point, it would be naÔve to expect any comforting rhetoric, or even common decency, from our President, so I think it is up to usóimmigrants, advocates, and their supportersóto craft a response to the new reality.


    For me, the protests are a good start. They show our solidarity and our strength (indeed, this is precisely why we held the Refugee Ball last month). There is some comfort in knowing that you are not alone and that the larger community is ready to defend you, and refugees and immigrants in our country are certainly not alone. Tens of thousands of protesters in the streets and at airports have demonstrated as much. We also see this as hundreds of elected representatives and other leaders have been speaking out in defense of our non-citizen neighbors.


    Lawsuitsósuch as the lawsuits by the ACLU and several state governmentsóare also crucial. Thus far, they have blocked some of the most offensive portions of the EOs. The lawsuits show that the protections of our laws and Constitution extend to all non-citizen in our country and quite possible to some non-citizens who are outside our country. This will, I hope, provide some comfort to those in the Administrationís crosshairs.


    Legislation in various states and municipalities is also important. Such action can serve to shield non-citizens from some provisions of the orders, particularly those that seek to encourage (or more accurately, coerce) local governments to help enforcement federal immigration law. They also potentially help build momentum for more positive legislative change on a national level.


    Finally, volunteering to assist non-citizens--with housing, food, job search, English--helps such people integrate into our communities and feel more welcome in our country. If you are looking for volunteer opportunities, you might try contacting a local non-profit organization.


    While these actions cannot fully allay the fear felt by refugees, asylum seekers, immigrants, Muslims, and many others in our country, they are all signs of the strong resistance President Trump faces to his policies and to his divisive world view. As we move through this difficult time, we must continue to resist hatred and work to support each other.

    Originally posted on the Asylumist: www.Asylumist.com.
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