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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    Nolan overlooks some points which should be clear to anyone.

    First, let us look at the the phrase "facially legitimate and bona fide" which Justice Blackmun set forth as the standard in the 1972 Kleindienst v. Mandel decision holding that the courts did not have the power to look behind a consular officer's decision not to grant a visa.

    Aside from the crucial distinguishing features between Mandel and the facts in Trump's Muslim entry ban litigation (such as, for one, the fact that the visa applicant, Mandel, was determined by the US Consul to have a record of having violated the conditions of a previous US visa - a factor totally absent in the Muslim entry ban litigation), Nolan is asking us to twist the English language in a way that makes no sense whatever.

    He is asking us to read Justice Blackmun's phrase:

    "facially legitimate and bona fide" as if the word "facially" also modifies "bona fide" as well as modifying "legitimate".

    This is untenable. The concept of good faith, almost by definition, applies to conduct relating to the purpose and intention behind a document, rather than the plain language of a document itself.

    There are a number of Supreme Court cases on this point, as well as an excellent Harvard Law Review article which I will discuss in an upcoming blog comment.

    Take the case of a marriage declaration. Implied in the declaration, in every society and culture in the world, is the concept of fidelity to one's marriage vows.

    But suppose that, at the time of entering into the marriage ceremony, the groom is already cheating on the bride and he continues to do so throughout the marriage.

    Can he claim that his marriage vows were made in good faith because the vows themselves were in proper form and said nothing about an intention to cheat?

    But this is what Nolan, in essence, is arguing in the Muslim ban case - that merely because Trump's executive orders didn't say: "The president hates" Muslims" , the courts have no power to look at the surrounding circumstances, which as the 4th Circuit majority determined in its opinion, were dripping with "animus" and religious discrimination against Muslims on Donald Trump's part.

    But this is only the beginning of the flaws in Nolan's contention. If he has any argument at all, based on Mandel, that argument is destroyed by Justice Kennedy's plurality opinion (writing for a majority of the Justices who agreed with the result in that case) in Kerry v. Din (2015), another case dealing with a consular visa refusal, where the court applied and interpreted the above quoted phrase in the Mandel case.

    I will show why in my forthcoming ilw.com blog comment and in my next Immigration Daily letter on this point.

    To be continued.

    Roger Algase
    Attorney at Law
    Updated 06-23-2017 at 03:19 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    In my own June 23 ilw.com comment on this decision, I quote the great 10th century Iraqi poet Al-Mutanabbi who wrote the following over 1,000 years ago:

    Wa taazumu
    fi 'ayn assaghir assagharuha

    Wa tasgharu fi 'ayn al azim al azaimu.

    A rough translation (as I am not a classical Arabic scholar) would be:

    "Small people think that their small actions are great,

    And great people think that their great actions are small."

    Which of these two types of people does Donald Trump belong to, by imposing his agenda of mass deportation and expulsion of Middle Eastern, Latino, Asian and black immigrants on America?

    True, the actual number of deportations may be starting off at a slower rate than those of Trump's predecessor, but that will be of little comfort to the threatened Iraqi Christians, whom Trump promised during his campaign to protect against persecution and possible genocide in their home country, and most of whom have only minor criminal convictions; and who have received only a two-week reprieve from Judge Goldsmith in Detroit.

    Roger Algase
    Attorney at Law


    Updated 06-23-2017 at 08:49 AM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    With regard to Trump. he no doubt thinks that his mass deportations are a wonderful achievement that is one more proof of his status as the greatest human being on the face of this earth, if not the greatest one ever to walk the face of this planet.

    As the great Iraqi poet Al-Mutanabbi wrote over 1,000 years ago:

    Wa taazumu fi 'ayn assaghir assagharuha

    Wa tasgharu fi 'ayn al azim al azaimu.

    (I hope I got it right - I am not a classical Arabic scholar.)

    The translation goes (roughly):

    "Small people think their small deeds are great, while great people think that their great deeds are small."

    Which of the above two classes does Donald Trump, with his malicious, vindictive cruelty that he is inflicting on millions of harmless, non criminal immigrant men, women and children who don't fit it with his vision of a white, Christian America belong too?

    Roger Algase
    Attorney at Law
    Updated 06-23-2017 at 03:44 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I feel as if I am in the middle between one person commenting who insists on closing his eyes to the reality of the mass deportation and ethnic cleansing of non-white immigrants which is, possibly slowly but certainly surely, gearing up in Donald Trump's America on the one hand, and another person commenting who has no hesitation about honestly and openly acknowledging this plain reality but who praises it as wonderful thing.

    Nothing wrong with being in the middle. As Aristotle said virtue lies in the motto:

    "Meden agan"

    "Nothing to excess"


    Roger Algase
    Attorney at Law
    Updated 06-22-2017 at 08:17 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    When "respect for the President" (which I didn't see a great deal of in Nolan's articles while Obama was in office, unless I missed something) takes precedence over telling the truth (as Nolan does not categorically deny Trudeau's having done in his statement), then we will not have a democracy in America any more.

    We will have George Orwell's 1984, Kim Jong Un's North Korea or, perhaps more to our 45th president's liking, Vladimir Putin's Russia.

    Roger Algase
    Attorney at Law
  6. ImmigrationLawBlogs's Avatar
    I just reviewed the new 9th circuit travel ban decision. I was puzzled by the fact that it did not apply the supreme court's facially legitimate standard. A computer search of the 86 page decision uncovered a discussion of Mandel in a footnote. Se footnote 9 on page 33, which reads as follows:

    This claim looks at whether the President appropriately exercised his authority under 1182(f) by satisfying its precondition, and whether, and to what extent, his authority under 1182(f) is cabined by other provisions of the INA. Because this challenge does not look at whether “the Executive exercises this [delegated and conditional exercise of] power negatively,” Mandel, 408 U.S. at 770 (emphasis added), nor involves a constitutional challenge by a citizen to a visa denial on the basis of congressionally enumerated standards, id. at 769–70, but rather looks at whether the President exceeded the scope of his delegated authority, we do not apply Mandel’s “facially legitimate and bona fide reason,” id., standard. See Sale, 509 U.S. at 166–77 (reviewing whether the executive order complied with the INA without reference to Mandel’s standard).

    Do you agree with what then court is saying?

    Nolan Rappaport


  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Note that Nolan nowhere refutes that fact that the Canadian prime minister was utterly, absolutely correct in pointing out that Trump is (in the words of a distinguished 4th Circuit Judge) "dripping" with animosity and religious prejudice against Muslims.

    Nolan, absurdly, calls my other comments about Trump "irrational". Is it "irrational" to say that Trump fired Comey in order to stop him from investigating alleged illegal connections with Russia by Trump or his close associates?

    Hasn't Trump said himself that was the reason why he fired Comey?

    Is is "irrational" to say that Trump's threatening to fire, or at least trying to lay the groundwork for firing special counsel Mueller?

    Is it irrational to warn that these actions, as well as Trump's well known, flaunted hostility to the essential features of democracy, the courts, the press, the opposition and religious freedom to name just a few, are putting America's democracy in danger?

    But this would not be the first time that Nolan has resorted to calling something "irrational" when faced with simple facts that he cannot refute.

    Roger Algase
    Attorney at Law
    This is not my first time responding to Roger's anti-Trump accusations. I know when it would be futile to respond to his comments, and this clearly is one of those times. Nevertheless, I will respond to one of the things he says this time.

    It is offensive and irresponsible for the Prime Minister of Canada to insult the President of the United States whether what he says is true or not.

    When Hillary was the First Lady, she would jog around the grounds of the White House every day. A friend of mine was in the Secret Service then and was assigned to guard the White House. He told me that some guys yelled out, "Look at the fat pig run!" as Hillary went by them. I wish the Secret Service had cuffed them and dragged them into the basement of the White House for a severe beating.

    But I guess Roger would have excused what they said by pointing out that Hillary was over weight.

    Nolan Rappaport
  8. ImmigrationLawBlogs's Avatar
    Note that Nolan nowhere refutes that fact that the Canadian prime minister was utterly, absolutely correct in pointing out that Trump is (in the words of a distinguished 4th Circuit Judge) "dripping" with animosity and religious prejudice against Muslims.

    Nolan, absurdly, calls my other comments about Trump "irrational". Is it "irrational" to say that Trump fired Comey in order to stop him from investigating alleged illegal connections with Russia by Trump or his close associates?

    Hasn't Trump said himself that was the reason why he fired Comey?

    Is is "irrational" to say that Trump's threatening to fire, or at least trying to lay the groundwork for firing special counsel Mueller?

    Is it irrational to warn that these actions, as well as Trump's well known, flaunted hostility to the essential features of democracy, the courts, the press, the opposition and religious freedom to name just a few, are putting America's democracy in danger?

    But this would not be the first time that Nolan has resorted to calling something "irrational" when faced with simple facts that he cannot refute.

    Roger Algase
    Attorney at Law
  9. ImmigrationLawBlogs's Avatar
    It's sad that Roger has so little respect for the presidency that he thinks it is appropriate for the Canadian Prime Minister to accuse the President of the United States of religious discrimination.

    If Trump had said something that offensive about Trudeau, Roger almost certainly would be calling it proof that Trump is unfit for the presidency. In fact if Trump had said something that offensive about Trudeau, I would agree.

    His other comments are too irrational to warrant a response.

    Nolan Rappaport


    Updated 06-21-2017 at 06:38 PM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    POLITICO has a wonderful report dated June 21 on the evident influence that the ancient Greek historian, Thucydides, is having on White House thinking regarding foreign affairs, especially regarding the need to avoid any possible conflict between the US and China.

    While the president himself is not exactly known for his intellectual distinction, it is encouraging to know that at least some of his advisers are learning from the classics, which have so much to teach us about history and human nature. See:

    http://www.politico.com/magazine/sto...history-215287

    As a high school student at Phillips Academy, Andover (Mass.) many decades ago, it was my great fortune to be introduced to ancient Greek, but the only historian we read was Xenophon - I have to this day never read anything by Thucydides.

    However, it is never too late to start. At the same time, given whom America now has as president, it would be well worthwhile to bone up on what Plato, Aristotle and other ancient Greek thinkers had to say about how a democracy can turn into tyranny.

    Roger Algase
    Attorney at Law
    Updated 06-21-2017 at 02:24 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    First, a small correction to a self-evident error in Nolan's above article:

    Nolan writes:

    "In addition to the inappropriateness of accusing the president of the United States of religious discrimination..."

    In the light of Trump's recent history of openly hostile statements and actions which a 4th Circuit Court of Appeals judge, speaking for an overwhelming majority on his court, accurately stated were "dripping" with "animus" and religious discrimination against Muslims, Nolan's corrected statement should read:

    "In addition to the indisputable accuracy of accusing the president of the United States of religious discrimination..."

    Nolan also refers to Canada's Safe Third Country Agreement with the United States.

    The opening "Whereas" clauses to this agreement assume that both countries have generous protections in place for refugees from third countries.

    This was, of course, before Trump's executive orders "temporarily" (i.e. for a long as Trump remains in office as president) banning refugees throughout the entire world from entering the United States.

    There is also an implied, though unstated, assumption in the above agreement that both countries will remain as democracies in which the essential values of freedom of religion and freedom of expression will continue to be protected.

    As long as Trump, who has consistently attacked Muslims, the press, the judiciary, and anyone else who stands in his way to absolute power, while obsequiously fawning on dictators with interests hostile to those of America such as Vladimir Putin; and who has fired one FBI chief for leading an investigation that was bothering him and is now threatening to do the same with a duly appointed independent counsel, thereby cementing the president's status as completely above and beyond the rule of law, remains in office, that assumption can no longer be relied on as far as the United States is concerned.

    Canada should revisit its adherence to that agreement, which was entered into before what Attorney General Jeff Sessions recently, and with a good deal of justification, referred to as the "Trump Era."

    Roger Algase
    Attorney at Law


    Updated 06-21-2017 at 08:24 AM by ImmigrationLawBlogs
  12. ImmigrationLawBlogs's Avatar
    Detainers sometimes are necessary. This one certainly is.

    Why doesn't Trump stick to going after the really bad guys, as he promised during the campaign?

    Aren't there enough of those around to satisfy him?

    Roger Algase
    Attorney at Law
    Updated 06-20-2017 at 11:24 AM by ImmigrationLawBlogs
  13. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by MKolken
    Deportations are down under Trump.
    That is just a temporary situation. He will be deporting millions of noncriminal, undocumented aliens without hearings when he implements his expanded expedited removal program.

    Nolan Rappaport
  14. ImmigrationLawBlogs's Avatar
    How is Trump undermining the rule of law by enforcing the immigration laws? He is just implementing the laws that were written by our elected representatives. If you don't like the laws, you should be complaining to Congress. They didn't just write them. They can change them too.

    Nolan Rappaport
    Updated 06-20-2017 at 10:28 AM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    Matt is, for whatever reasons, closing his eyes to the fact that, unlike Obama, Trump is openly targeting (with Obama's DACA program as a welcome but sole exception) every single one of the estimated 11 million unauthorized immigrants in the US for deportation.

    This is a goal which the Obama administration never set for itself; instead, its announced goal (admittedly not always adhered to), was to concentrate on people with serious criminal records as a priority for deportation.

    Things have now changed. I ask Matt to look at the 60 examples mentioned in the Slate article in my above June 20 update and point out how many of those people are serious criminals.

    Matt's main point is that the actual deportations may now be down, compared to immigration arrests, which are way up under Trump.

    What difference does that make? And, even if the deportations are down at the beginning of this administration, that is not for lack of trying.

    As I mention in a recent Immigration Daily comment, Trump is now flying in immigration judges from all over the country to a remote detention facility, Lasalle, in rural Louisiana, where over 1,000 immigrants are being held in inhuman, concentration camp-like conditions awaiting kangaroo-court proceedings before being rushed out of the country.

    Does this mean that "John the Baptist" Obama's immigration detention centers, which Matt justly did so much to warn the American people about in his numerous articles about them were paradise on earth? Of course not.

    Much of Trump's deportation machinery was inherited from Obama. But Trump has promised to take Obama's deportation cesspool down to new levels of totalitarian cruelty and injustice, and while this might be starting off more slowly than America's new strongman would like, he is already starting to make good on his word.

    Roger Algase
    Attorney at Law
  16. MKolken's Avatar
    I'm not making excuses, I'm stating statistics.
  17. ImmigrationLawBlogs's Avatar
    This is welcome news. Any exception to Trump's mass deportation agenda - see my June 18 ilw.com post on this topic - should be commended.

    Hopefully, Trump might one day decide to break his promises on mass deportation for almost 11 million mainly Hispanic non-DACA recipients, and on his Muslim entry ban, which in its latest version (which Trump himself has criticized as too "watered down") affects almost 200 million people in six countries from which no terrorist attack on the US has ever been launched, purely because of their religion.

    I would not advise any readers to hold their breath waiting for this kind of policy change on the president's part.

    Roger Algase
    Attorney at Law
    Updated 06-19-2017 at 08:01 PM by ImmigrationLawBlogs
  18. ImmigrationLawBlogs's Avatar
    And what about the new arrests that have increased by 40 percent since Trump took office?

    Is Obama giving Trump secret "back channel" instructions to arrest all those people too?

    No one is trying to make excuses for Obama, with his record number of deportations (so far).

    Why make excuses for Trump? His mass deportation plans are so ambitious that they would make Obama look like (to use my favorite hackneyed cliche - apologies to all readers who are tired of seeing this expression in my comments) the "John the Baptist" of deportations by comparison.

    Roger Algase
    Attorney at Law
    Updated 06-19-2017 at 09:59 AM by ImmigrationLawBlogs
  19. MKolken's Avatar
    Most of the deportations we now see under Trump are a result of immigration enforcement under Obama's mass deportation policies: http://blogs.ilw.com/entry.php?9329-...A-Half-Million
  20. ImmigrationLawBlogs's Avatar
    Maybe deportations are down, due most likely to backlogged court calendars. But Reuters reports on May 17 that deportation arrests are up by 40 percent since Trump took power. Please google:

    Reuters: U.S. immigration arrests up nearly 40 percent under Trump

    Equally important, if not even more so, no one lacking proper documentation is safe from being arrested, incarcerated and put into deportation proceedings any longer, even if the person has no criminal record, poses no threat to public safety and has long-standing family and community ties to the US.

    The fear factor can be even worse than the actual arrests in the devastating effect that Trump's policies are having on minority immigrant communities.

    See America's Voice, April 17:

    Trump's First 100 Days on Immigration: Yes, We Have a Deportation Force Carrying Out Mass Deportation

    Roger Algase
    Attorney at Law
    Updated 06-19-2017 at 07:58 AM by ImmigrationLawBlogs
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