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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    I am surprised that a legal scholar such as Nolan, with his extensive legislative and administrative opinion-writing experience, would seriously argue that the courts have no power to look behind the surface language of a statute or executive branch order to determine its real purpose and intent.

    Very often, the real purpose of a law or adminstrative
    directive is the very last thing that the drafters want to put in it, and no one knows this better than Nolan himself.

    What did Nolan expect Trump to say in his seven or six country ban orders:

    "I hate Muslims and I don't want any more of them coming to America" ?

    No one is ever going to say that in a statute or executive order, even though that is very close to exactly what Trump actually said in his December, 2015 campaign speech.

    Nolan's absolutist view that the courts have no business looking behind a statute or executive order concerning entry to the US in order to determine its real meaning and purpose would in effect make the president into a king rather than the head of one of the three equal branches of government in a democracy.

    The Supreme Court decisions that Nolan refers to were related to a consular officer's denying a visa to a single individual, not the president's banning 100 million people from the US, more than 99 percent of whom just happen to share the same religion.

    As the 9th Circuit pointed out during oral argument on Trump's first Muslim ban, the two cases are entirely different. See Kerry v. Din (2015) and Kleindienst v. Mandel, (1972)

    Whenever Nolan resorts to accusing me of being personally biased against Trump, one has to suspect that this is to cover up a weakness in his argument on the law, and this instance is no different.

    Why do I say that Nolan's argument is weak on this point? This is why: Nolan argues that the courts have to accept an executive decision if it is "facially legitimate". But he leaves out the additional requirement set forth by the Supreme Court that the decision also has to be in good faith.

    See Kleindienst, supra.

    While the individual visa denials in those two Supreme Court cases were ostensibly in good faith, based on circumstances that the Court did look into and considered in full detail in each case, no such good faith exists in the two Muslim ban orders at issue here.

    For reasons that I have explained in detail in previous comments on this issue, and that the Ninth Circuit, and District court judges in Washington, Hawaii and other states have explained in their opinions, this essential element of good faith was completely lacking in Trump's two orders, which reflected a consistent record of anti-Muslim "animus" (to quote from one of these court decisions) by Trump and his two top advisers, the extreme right wing journalist Stephen Bannon, who has no national security experience whatever, and Trump's now disgraced and fired national security adviser, Michael Flynn, who called the Muslim religion a "cancer" rather than a real religion. Talk about "animus". Talk about hate.

    There was little or no input from the real national security apparatus, and many national security experts reportedly opposed Trump's ban, some even arguing that it would put America at greater risk.

    Nolan is in effect claiming that the president's good faith in this issue must be presumed solely from the powers of his office.

    That may be the rule in Russia and North Korea. It is not the way the law works in the United States of America.

    Roger Algase
    Attorney at Law


    Updated 03-22-2017 at 08:32 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Roger, I am still waiting for you to show me which provisions in the Executive Order do the things you are complaining about. Stop relying on his campaign statements. Before the 9th circuit started venting its Roger-like prejudice against the President of the United States, no court had ever used campaign statements that way. When is the Trump hatred going to run its course?

    The 9th circuit will be stopped by the Supreme Court. In fact, it's my understanding that that circuit is reversed more often by the Supreme Court than any other circuit in the country. But what will stop Roger? I suspect that he will be expressing his Trump hatred and prejudice for the next four years....maybe longer.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    Nolan insists that we should take the obviously sham and bad faith "national security" pretext behind the Muslim ban order at face value without looking at the obvious history of intent to discriminate against the Muslim religion and the rights of Muslim US citizens that lies behind that order.

    How naive does Nolan think that the federal courts are required to pretend to be?

    The Supreme Court has held that the courts cannot look behind a facially legitimate order. I explain this in an article that appears in today's ILW.com.

    Federal courts flout precedent in blocking Trump's travel ban (March 20, 2017),
    http://thehill.com/blogs/pundits-blog/immigration/324764-federal-courts-upend-legal-precedent-in-blocking-trumps-travel

    We know what is in the order, We also know what led to the order and the obvious anti-Muslim animus by Trump and his top advisers involved in every aspect of its drafting and preparation.

    Only if we interpret Trump's campaign statements the Roger does, and I don't. His animus is towards Islamic Extremists who commit terrorist acts. Or does Roger think that all Muslims are the same. Criticize the Muslim terrorists and you are criticizing all Muslims.


    Where is Nolan's basis for claiming that the courts, and the American people, should ignore this obvious reality, or turn aside from at least looking into this issue to see what the real motive for the ban actually is, as the 9th Circuit majority and district courts in Hawaii, Washington State, Maryland and elsewhere have been doing?

    As I said, its based on a Supreme Court decision. I am more interested in the obvious reality that the 9th circuit is basing its decision on the Travel Ban on prejudice against President Trump. It's bad enough that Roger conducts almost daily anti-Trump diatribes. It is even more outrageous when the federal courts block the facially legitimate national security decisions of our president on the basis of prejudice.

    Nolan Rappaport
  4. ImmigrationLawBlogs's Avatar
    Nolan insists that we should take the obviously sham and bad faith "national security" pretext behind the Muslim ban order at face value without looking at the obvious history of intent to discriminate against the Muslim religion and the rights of Muslim US citizens that lies behind that order.

    How naive does Nolan think that the federal courts are required to pretend to be?

    Or does Nolan think that we live in a monarchy where the King can order the federal courts not to question whether his edicts are in good faith and have at least a rational basis?

    We know what is in the order, We also know what led to the order and the obvious anti-Muslim animus by Trump and his top advisers involved in every aspect of its drafting and preparation.

    This animosity against Muslim immigrants and US citizens alike is something that Trump has never tried to conceal. It is one of the few things that he has been consistent and honest about from the time he first proposed a worldwide Muslim immigration ban in December, 2015. He has in fact often boasted about it.

    Where is Nolan's basis for claiming that the courts, and the American people, should ignore this obvious reality, or turn aside from at least looking into this issue to see what the real motive for the ban actually is, as the 9th Circuit majority and district courts in Hawaii, Washington State, Maryland and elsewhere have been doing?

    I would respectfully remind Nolan that we live in the United States of America, not Russia or North Korea.

    There is nothing "shadowy" about that.

    Roger Algase
    Attorney at Law


    Updated 03-21-2017 at 07:14 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    I wonder how far Roger would go with his reasoning. If Russia launches a nuclear attack on the US, would Roger complain if Trump launched a nuclear response before clearing it with the 9th circuit? Who knows, he might have a hidden agenda.

    Nolan Rappaport
    Updated 03-21-2017 at 07:03 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    If Roger would take the time to read the entire Executive Order, he wouldn't have to guess what the next step is. Trump tasked the heads of the pertinent government agencies to determine what information is needed to vet an alien coming to the US properly and then find out which foreign governments are unwilling to provide that information. The countries with uncooperative governments will be put on a list with the agency heads' recommendations on stopping immigration from those countries until they decide to cooperate.

    Is this another sinister plot? Surely Roger will think that it is. But "only the shadow knows."

    Roger will understand that reference. It you aren't as old as we are, the source is revealed at https://en.wikipedia.org/wiki/The_Shadow

    Nolan Rappaport
  7. ImmigrationLawBlogs's Avatar
    I was responding to Roger's claim," a 100 million people"... "whom Trump presumes to be a threat to America only because of their religion, with no other evidence." In fact, I quoted the claim in my previous comment.

    The information i provide from the Executive Order may not be Trump's "real reason" for the travel ban, but its presence in the order contradicts Roger's claim.

    But Roger doesn't want to talk about what the Executive Order says, only about Trump's hidden agenda. The District Court for Hawaii had the same problem. They couldn't find anything wrong with what the Executive Order says either.

    i address the "but he has Muslim hatred in his heart" argument in the article. No reason to repeat myself here.

    Nolan Rappaport
    Updated 03-22-2017 at 10:20 AM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    Nolan is very good at repeating the official line of pretexts which were put forward by Trump's strategists as a basis for the Muslim ban orders in order to try to give them the appearance of legality.

    But one of these top advisers, Stephen Miller, let the cat out of the bag when he announced that the second Muslim ban order had the same policy objective as the first one.

    And what was that first policy objective? All the evidence, which both the District of Hawaii and the 9th Circuit panel judges reviewed in detail, showed that the basic policy objective has not changed since Trump first called for a world wide ban on Muslim citizens of every county in the world, including the US, from entering the United States in December 2015.

    No wonder that Trump went into a rage and issued vicious and senseless attacks on the judges who refused to go along with his deceptions, something which drew the strongest possible condemnation even from the five 9th Circuit judges who agreed with his view of the law.

    However, when the federal courts looked behind the facade to determine the real motivation for the ban, Nolan argues that they have no right to try to get at the truth.

    Blindly following whatever those in power put out as the excuses for taking any given action is the way the court system works in countries such as Russia and North Korea.

    That is not the role of the courts in the United States of America.

    Roger Algase
    Attorney at Law
    Updated 03-21-2017 at 02:04 PM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    Roger says, "But never before have these powers been used in such a broad and sweeping way, to ban more than a 100 million people from America who have little or nothing in common other than their religion, and whom Trumps presumes to be a threat to America only because of their religion, with no other evidence."

    Apparently, he did not read the Executive Order he is talking about.

    Section 1(b)(i).

    Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S.C. 1187(a)(12)(D)(ii).

    Section 2(e).

    (e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:

    (i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.

    (ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.

    (iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.

    (iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to al-Qa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.

    (v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.

    (vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.

    Nolan Rappaport
    Updated 03-21-2017 at 05:07 PM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    Can Nolan show any parts of Trump's executive orders which are not aimed at exploiting hatred and fear of Muslim immigrants - and US citizens - which Trump made the hallmark of his campaign ever since calling for a ban on entry to the US by Muslims throughout the world in December, 2015?

    Nolan is asking us to ignore the entire history of Trump's executive orders, both before and after Trump took office as president.

    No, the Muslim ban orders are not as broad as Trump's original call to ban every Muslim in the world (even, initially US citizens, if one remembers the statement of his then campaign aide, Hope Hicks, that "Mr. Trump means everyone").

    But the toned down orders compared to his original world wide ban are nothing more than a cynical and transparent attempt to hide their real purpose, which has not changed.

    Even if our courts, and our nation, accept Trump's offer to "drink the forgetful waters of Lethe" as Ovid, who was "deported" from his own city of Rome in 7 A.D. by another autocrat, Augustus Caesar, wrote in his great poem Tristia, the very language of the ban orders themselves, both the original and the revised ones, contemplate adding additional countries to the original ban.

    Does anyone have any doubts as to what will be the major religion in the countries to be added later on?

    Hint: It will not be the Episcopalian or Presbyterian faiths.

    Another ancient Roman poet, Lucan, (who had his own even more serious problems with an authoritarian emperor by the name of Nero), had a perfect description for Trump's Muslim bans 2,000 years ago:

    iusque datum sceleri

    - "legality bestowed on infamy".

    There could be no better explanation of both Trump's first and second Muslim ban orders.

    Roger Algase
    Updated 03-20-2017 at 10:57 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    Roger says, "Trump's executive orders against Muslim and Hispanic immigrants are, of course, nowhere near as extreme as Hitler's laws and actions against the Jews, which were in a unique class of evil by themselves, but Trump's measures against Muslim and other non-white immigrants are motivated by the same spirit of exploiting racial and religious hatred in the pursuit of absolute power that Hitler used so successfully."

    Really, can you show me which provisions in his executive orders do these things?

    Nolan Rappaport

  12. IDBlog's Avatar
    Editor:


    Your readers might be interested in discussing CIS's latest nightmare. For over 30 years the I 130 Immigrant Visa Petition has consisted of 2 pages. Now CIS expands it to , not 3 or 4 , but 12 and if for spouse, another 9 more.


    In spite of all this clap trap,they still leave out most critical question , that of Adam Walsh convictions???


    Dark days ahead???


    Rev. Robert Vitaglione

  13. ImmigrationLawBlogs's Avatar
    Update, March 22:

    What did Nolan expect Trump's order to say?


    "I am the president.

    I hate Muslims and do not want any of them in this country"?

    A distinguished legal expert with Nolan's vast legislative and opinion writing experience knows better than anyone else that the real purpose of a law or administrate order is very often the last thing that would ever appear in its text.

    This is why, in a democracy, we have courts and other tribunals to look into the real intent and effect of legislation and executive actions.

    My original comment is as follows:

    The federal courts have the strongest precedents of all for blocking Trump's Muslim ban orders - the 1st and 14th Amendment guarantees of religious freedom and equal protection of the law to U.S, citizens, who are also impacted in many ways by Trump's program of hatred and discrimination against Muslim, Mexican and other minority immigrants, as both the federal district court for Hawaii and the 9th circuit 3-judge panel explained in their decisions.

    This is not to dispute that Congress and the executive branch have wide powers over immigration.

    But never before have these powers been used in such a broad and sweeping way, to ban more than a 100 million people from America who have little or nothing in common other than their religion, and whom Trumps presumes to be a threat to America only because of their religion, with no other evidence.

    In this sense, there are no precedents for the issue that the federal courts are facing now because of the enormous expansion of presidential power which Trump is claiming.

    But, to be sure, there are precedents for Trump's actions against minorities.

    To look at just one of these, see Anis Shivani's column in Salon.com:

    Trump and Mussolini: 11 Key Lessons from Historical Fascism

    http://www.alternet.org/visions/trum...orical-fascism

    Yes, there are precedents for Trump's executive orders banning Muslim immigrants and carrying out mass expulsion of Mexican and other brown-skinned immigrants.
    But they are not the precedents that Trump and his supporters are claiming to rely on.

    Roger Algase
    Attorney at Law
    Updated 03-22-2017 at 09:15 AM by ImmigrationLawBlogs
  14. ImmigrationLawBlogs's Avatar
    To get a good sense of where Trump's Muslim ban and mass deportation executive orders are leading to, read Anis Shivani in salon.com:

    Trump and Mussolini: 11 Key Lessons from Historical Fascism

    http://alternet.org/visions/trump-an...orical-fascism

    See especially, Part 10:

    Racism is inherent to fascism:

    Shivani writes:

    "It is absolutely key that Trump began his campaign
    ...
    against
    Mexicans - and then Muslims and Arabs."


    While, of course, Trump does not by any possible stretch of the imagination support genocide or mass murder, there is still a comparison with Hitler, not only Mussolini.

    Hitler began is climb to total power in Germany by attacking the Jews, who were so unpopular among many Germans that they were willing to give up their own freedom as long as Hitler took action against the Jews.

    He did take such action, beginning with the infamous Nuremberg Laws in 1936.

    Trump's executive orders against Muslim and Hispanic immigrants are, of course, nowhere near as extreme as Hitler's laws and actions against the Jews, which were in a unique class of evil by themselves, but Trump's measures against Muslim and other non-white immigrants are motivated by the same spirit of exploiting racial and religious hatred in the pursuit of absolute power that Hitler used so successfully.

    That is what we are seeing today in Donald Trump's America.

    Roger Algase


    Updated 03-20-2017 at 03:07 PM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    I have written extensively about Mandel. See my ilw.com blog on December 29, 2016, in which I also refer to a letter by 42 Constitutional Law professors on this issue. Nolan might well want to devote some further study to Mandel.

    In the 2015 Supreme Court case of Kerry v. Din, the Court held that a decision by the executive to deny a visa had to be in good faith in order to be beyond judicial review. There is not a single iota of good faith in Trump's Muslim bans.

    Everything in the history of the bans, both before and after Trump took office as president shows that the purpose was religious discrimination in violation of the First Amendment rights of US citizens, not just immigrants seeking to enter the US.

    See my ilw.com comment of March 19, 2017.

    Roger Algase
    Attorney at Law
  16. ImmigrationLawBlogs's Avatar
    No, Roger, they defied the constitution. Read Kleindienst v. Mandel, 408 U.S. 753 (1972).
    https://supreme.justia.com/cases/fed.../753/case.html

    Nolan Rappaport
  17. ImmigrationLawBlogs's Avatar
    With regard to the merits of the five Circuit Courts Judges' dissent, holding that the president has wide power over the entry of foreign citizens which the courts should not interfere with, I will respond more fully in a forthcoming comment.

    For now, it is enough to say that the 9th Circuit majority, which refused to vacate its decision blocking Trump's original seven Muslim country ban, was acting, not as "Platonic guardians" in the words of the dissent, but as guardians of the Constitution of the United States, which protects the freedom of religion of all Americans.

    This includes the freedom of 3 or 4 million Muslim Americans to practice their religion free from fear, hatred, suspicion and persecution.

    I do not see anything in the dissent which addresses that crucial issue in this case.

    Roger Algase
    Attorney at Law
    Updated 03-17-2017 at 09:52 PM by ImmigrationLawBlogs
  18. ImmigrationLawBlogs's Avatar
    The point here is obvious. Even the judges who agree with Trump on the law cannot stand his bullying tactics and his assault on the independence of the judiciary.

    If this ringing condemnation of Trump's authoritarian assault on judges who disagree with him on the law had come from judges who are opposed to his legal views in the issue before the court, it might b easier to dismiss this opinion as just polemics from his opponents.

    But these five judges are not his opponents. On the issue before the court, they are on his side.

    But even judges who agree with him on the law are warning about the dangers to our democracy in his personal attacks on judges who disagree with him.

    The five judges are, in effect, telling us that Trump is behaving like a dictator who happens to be right in a particular case (in their view), but who is still acting like a dictator.

    In more than a half century of reading judicial decisions, I have never seen one like this.

    We are living in uncertain and dangerous times, as far as our democracy is concerned.

    That is the message coming from the five dissenting judges of the 9th Circuit.

    And how did Trump answer the 9th Circuit's decision? According to the news item quoted above, it was with another personal attack on the members of that court.

    Roger Algase
    Attorney at Law
    Updated 03-17-2017 at 08:36 PM by ImmigrationLawBlogs
  19. ImmigrationLawBlogs's Avatar
    And what does it say about the correctness of the decisions that have held that Trump's Travel Ban violates the constitution? You brush that aside to focus on criticism of Trump.

    "Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.”

    He says in a footnote on the first page of his dissent, "I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review."

    Nolan Rappaport
  20. MKolken's Avatar
    And see Dershowitz: "The statute on its face is Constitutional." http://www.mrctv.org/videos/alan-der...ity-travel-ban
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