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  1. INA 212(f): Trump's path to dictatorship over immigrants and US citizens? Part 1. Roger Algase

    Update: September 19, 9:07 am:

    The latest news reports are that the FBI is looking for a naturalized US citizen, originally from Afghanistan, as a possible suspect in the September 17 explosive device attacks in New York and New Jersey. According to The Hill, Donald Trump has lost no time in attempting to exploit this latest event for his own purposes.


    This makes my following comments about what legal rights, if any, Trump would have to bar entire classes of immigrants, or even individual immigrants, from the US by presidential decree if he becomes president even more pertinent.

    My original post appears below:

    If Donald Trump becomes president, could he reduce America's present complex immigration law system, which has been described as being second only to the tax laws in complexity, to a simple one of rule by decree?

    The answer is yes, at least to the extent of 50 per cent. The president might not be able to decide by executive fiat which immigrants to admit to the United States, but he or she certainly has the power to exclude any immigrants or classes of immigrants that he or she determines to be "detrimental to the interests of the United States".

    INA Section 212(f) provides, in relevant part, as follows:"

    (f) Suspension of entry or imposition of restrictions by the president - Whenever the president finds that the entry of any aliens or 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 of time suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

    It is is hard to imagine any power that could be broader than this. One might argue that the above provision could not be used to exclude individual immigrants who might attract Trump's ire for any reason.

    For example, former Mexican president Vincente Fox, whose scathing attack on Trump as a potential Latin American style dictator was reported in the Washington Post on September 13 (link to be provided) would probably not be very high on Trump's list of visitors or immigrants who who would be welcome in the US, judging by the comments that Trump has made against so many of his American critics as "losers", "mediocre", "not very bright", "crazy", etc.

    If Trump were to order that Fox should be refused a visa under the above INA provision, could Fox argue that this law applies only on "classes of aliens" , not individuals seeking admission? Well he might, but in what forum?

    The US Supreme Court has made clear that foreign citizens do not have any constitutional right to seek admission to the US on their own behalf, and arguments that the rights of Americans are harmed by refusing admission to any given foreign citizen or citizens have not been welcomed with any great enthusiasm in that Court so far.

    See Kleindienst v. Mandel (1972) and Kerry v. Din (2015).

    Alternatively, Trump might deny Fox (or any other foreign citizen who speaks out against him) admission to the US on the grounds that the person belongs to a "class" of immigrants who do not "respect" America (i.e. its president, Donald Trump) or "American values", i.e. whatever Trump wants to say or do.

    Arguably, there might be a precedent for this in Trump's own August 31 Phoenix immigration address in which he proposed to bar anyone who doesn't support American "values" from entering the US.

    But a more apt precedent would be in the actions of certain rulers in countries other than the US (and for whom Trump has had at least some kinds words), such as Russia's Vladimir Putin, Nortn Korea's Kim jong Un and Saddam Hussein of Iraq, all of whom have made clear that they do not welcome dissenting voices.

    However, I do not want anyone to misunderstand me. My concern about what i see as a possibility that Trump might use Section 212(f) to rewrite our immigration laws by personal decree is not limited to whether or not he might choose to ban certain individual immigrants who might rub him the wrong way, as in the above example.

    A much bigger concern is whether Trump might use this section to justify his proposed Muslim ban, thereby holding over a billion members of a major world religion responsible for a few despicable terrorist acts (including the latest NYC/NJ attacks this past weekend which are now under investigation as possible terrorism by an alleged suspect born in Afghanistan - see my update above).

    But, under INS Section 212(f), the president would have even greater
    power than anyone has imagined. For just one example, suppose Trump, who has already announced his intention to abolish legal H-1B work visas and labor certification green cards, decides to use this 212(f) to do so?

    A lot easier (for him) than going through Congress, which would now become irrelevant.

    Or suppose, taking advantage of possible suspected terror attacks such that those now under investigation in New York and New Jersey, Trump cuts off all immigration, except possibly from Europe, where his wife and grandparents came from - in a return to the spirit of the bigoted 1924 "national origins" Johnson-Reed immigration act, in order to please his white supremacist followers?

    Would this be impossible? Not if one pays close attention to Trump's August 31 Phoenix speech in which, by clear and obvious implication, he criticized the 1965 immigration reform law which abolished the "Nordics only" quotas of the 1924 immigration law.

    Moreover, if Trump (or any future possibly authoritarian chief executive) gains the power to rewrite our immigration laws by executive diktat, will the rights of American citizens be safe from being taken away by the simple stroke of a presidential pen?

    To be continued in a forthcoming post.
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing immigration law, most of this time concentrating in H-1B, labor certification, and other skilled and professional work visas and green cards, for more than 35 years. Roger's email address is

    Updated 09-20-2016 at 07:56 AM by ImmigrationLawBlogs


    by , 09-17-2016 at 09:41 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration lawyers Association. Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month. This month’s Check In With Charlie featured predictions about EB2 and EB3 in most of the popular categories for readers of this Blog. Here are some highlights:

    Philippine EB3 – Charlie offered some of his most optimistic predictions for this category. He expects that this category will initially move about three weeks per Bulletin, but that it should speed through 2011 and 2012, likely finishing the fiscal year into 2013. This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.

    India EB2 and EB3 – The DOS expects that EB2 will move at a three to four month rate. Those in this category are cautioned that 2007 was a very unusual year in immigration because of the Visa Gate scandal in 2007. Therefore we may see inconsistent progressions until the date moves comfortably beyond mid-2007.

    The EB3 category will move much slower. Charlie says just one week per Bulletin.

    Worldwide EB-2 and EB-3 – EB-2 will remain current for the foreseeable future. Charlie cautions that demand is increasing in this category. It may be necessary to implement a cut-off date sometime in the Spring of 2017. Worldwide EB-3 will continue to see a slight retrogression.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
  3. Immigration Courts Overwhelmed by Priority Deportation Cases

    by , 09-16-2016 at 01:53 PM (Matthew Kolken on Deportation And Removal)
    Via Syracuse University's TRAC Immigration:

    (15 Sep 2016) The number of judges continue to prove insufficient to handle the growing backlog in the Immigration Courts. The problems are particularly acute for handling even priority cases like those involving unaccompanied children and women with children according to the latest court data updated through the end of August 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

    The backlog of pending cases involving unaccompanied children reached 73,649 at the August 2016, while the backlog of cases involving women with children is even larger and rose to 83,949 last month. Together they now account for nearly one third (31%) of the court's overall backlog of a record 512,190 cases.

    For more details, including the top ten states with the largest overall Immigration Court backlog, see this month's snapshot report at:

    For cumulative details through August 2016 of priority cases since July 2014 involving women with children see:
  4. Refugee in Iconic WWII Photo Dies at Age 92

    On the afternoon of August 14, 1945, George Mendonsa was sitting in a movie theater with his date in New York City. Home from the Pacific Theater, where he served in the navy, Mr. Mendonsa was expecting to return to war and to the long-anticipated (and dreaded) invasion of Japan. Suddenly, the movie stopped, the lights came on, and someone announced that the war was over.
    This is how it looks when a war ends (from the days when wars actually ended).
    The theater goers spilled out into the street. Mr. Mendonsa and his date Rita Petri went to a bar where they imbibed maybe a bit too much. They then returned to the celebration in Times Square.

    The 20-year old Mendonsa had witnessed some horrible sights during his time in the navy. Most recently, he saw two Kamikaze planes destroy an American ship. Over 300 servicemen were killed. Many others were horribly wounded. Mr. Mendonsa assisted at the scene, and witnessed the American nurses tending to the injured.

    As he walked through the square, Mr. Mendonsa caught sight of a woman in a nurse's uniform. In an instant, he grabbed her, swooped her down, and kissed her. The moment was captured by photographer Alfred Eisenstaedt and his photo came to symbolize the relief and exuberance that our country felt at the end of World War II (though the continued glorification of Mr. Mendonsa's non-consensual kiss is a bit creepy).

    Although the photo itself became famous, for many years, the people in the photo were unknown. A number of men and women came forward, claiming that they were the ones in the picture. Only in recent years has the mystery been solved (probably).

    It turns out that the woman in the photo (the kissee, if you will) was not a nurse; she was a 21-year old dental assistant from Queens named Greta Zimmer. Ms. Zimmer was also a refugee from Nazi-controlled Austria.

    Margarete "Greta" Zimmer was born on June 5, 1924 in eastern Austria. Her parents, Max and Ida, and her two sisters were Jewish. In the years leading up to World War II, Austria drifted into the orbit of Nazi Germany, and conditions for Jews deteriorated. Then, in March 1938, Austrian Nazis took control of the government. In the same month, German troops occupied the country. Despite the overt anti-Semitism and the increasing danger, the Zimmer family tried to remain in their homeland.

    By 1939, the family's thinking had changed. The danger was mounting and opportunities to leave were disappearing. Max and Ida decided to send their daughters out of Austria, even if they had not secured passage for themselves. One daughter was sent to Palestine. Greta, then 15 years old, and her sister Jo came to the United States (lucky for them, given the strict quota laws in place at the time). The girls hoped that the separation from their parents would be only temporary.

    Relatives in New York welcomed Greta and Jo to the United States. Greta volunteered as an air-raid warden during the war. She took classes at the Fashion Institute of Technology.

    On the day of the photo, Greta Zimmer was working in a dental office near Times Square. All morning, they had been hearing rumors that the war had ended, and after lunch, she went over to Times Square, where she saw a lighted billboard declaring "V-J Day!" As for the kiss, Ms. Zimmer remembered it in a 2005 interview--

    Suddenly, I was grabbed by a sailor. It wasn't that much of a kiss. It was more of a jubilant act that he didn't have to go back. I found out later he was so happy that he didn't have to go back to the Pacific where [he] had already been through the war. The reason he grabbed somebody dressed like a nurse [was because] he felt so very grateful to the nurses who took care of the wounded.

    I'm not sure about the kiss... it was just somebody celebrating. It wasn't a romantic event. It was just an event of "Thank God the war is over."

    After the war, Ms. Zimmer married Dr. Mischa Friedman and had two children. She studied and later worked at Hood College in Maryland. It wasn't until years later that Ms. Zimmer saw the photo and recognized herself in it. She also eventually met George Mendonsa, who by then had married Rita Petri, his date on V-J Day.

    Ms. Zimmer never saw her parents again. They died in Auschwitz. She also lost many other family members during the Holocaust. In all, of 181,000 Jews in Austria in 1938, approximately 65,000 were murdered by the Nazis. Most of the remainder fled the country. Only a few thousand Jews remained in Austria by the end of the war.

    Greta Zimmer Friedman died on September 8, 2016. She was buried in Arlington National Cemetery, next to her late husband, who was a military veteran. She was 92. May her memory be a blessing.

    Originally posted on the Asylumist:
  5. In 2007 Hillary Clinton Sounded Much Different on Immigration

    by , 09-16-2016 at 09:52 AM (Matthew Kolken on Deportation And Removal)

    Here is video from an Iowa town hall in 2007. Hillary Clinton was asked by a member of the audience about her positions on denying driver's licenses to undocumented immigrants and border security.

    Her response included a list of priorities.

    Priority 1. "First you've got to toughen border security." More personnel and technology.

    Priority 2. "Crack down on employers who employ undocumented workers." She called for much tougher sanctions and penalties.

    Priority 3. Help communities get more "financial aid" to help deal with the consequences of a broken immigration system. She stressed that local communities shouldn't have to pay for healthcare, education, and law enforcement required as a result of a broken Federal immigration system.

    Priority 4. Help countries "to the South" create more jobs for their citizens.

    Priority 5. Get people to come out of the shadows by giving them sanctions, penalties, and fines. She said "I want to know who is in this country. I want to keep track of them." She then illustrated her point by comparing the undocumented population to 9-11 terrorists.

    Mrs. Clinton was adamant that people with ANY conviction should be deported without due process. She stated "if they ever committed a crime either in the country they came from or in this country deport them immediately no questions asked." This sounded like a one strike policy. She didn't specify what kind of crime or if the recency of the violation would result in automatic deportation without due process. Mind you, the definition of "criminal alien" under the Obama administration, of which Mrs. Clinton was an integral part of, includes people with traffic tickets, and nonviolent or victim-less crimes.

    The tenets of Mrs. Clinton's reform plan were for the undocumented population to pay fines, back taxes, and try to learn English. There was no path to citizenship, only a path to legalization after a long, long wait. In this regard, she said "they have to wait in line... And maybe in 10 or 15 years they can get legalization... I think that is the ONLY answer."

    Sounds enticing huh?

    Point being, in 2016 if Hillary would have run for President on this platform she would have been a lock for the Republican nomination.

    Updated 09-16-2016 at 04:25 PM by MKolken

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