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  1. Trump may face a constitutional crisis over Fourth Circuit’s Travel Ban decision. By Nolan Rappaport



    CNN.COM
    In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”

    The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.

    History of the travel ban.

    In December 2015, Donald Trump made a campaign statement “calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”

    This was several weeks after a report from the Homeland Security Committee had revealed our government’s difficulty obtaining information about Syrian refugees from within Syria.

    For instance, the report quotes former FBI Director James Comey as saying, “We can query our databases until the cows come home, but nothing will show up because we have no record of that person...You can only query what you have collected.”

    Similar problems restricted information from other Muslim countries as well.

    Trump, therefore, seemed to me to be saying that until we can do adequate background investigations, we should suspend the entry of Muslim aliens.

    President’s authority to exclude aliens.

    Read more at --
    http://www.huffingtonpost.com/entry/5929ff8ce4b08861ed0cca0e


    Published originally on Huffington Post.

    About the author
    Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

  2. Issue For Courts In Muslim Ban Case Is Not Whether President Is Dissembling, But Whether Judges Can Listen When He Tells The Truth. Roger Algase

    In an example of how a superficial view of the law can lead to distorted conclusions, Robert Barnes, who has been a Washington Post editor and reporter for more than 30 years, and who has been covering the Supreme Court since 2006, turns the US 4th Circuit Court of Appeals decision in the Muslim ban order case on its head and completely misses the main point in his May 28 article:

    Court says essentially that Trump is not to be believed. Will Supreme Court conclude the same?

    (I do not have a direct link. Please go to Google.)

    As the title to his article implies, Barnes seems to have a problem with the concept that the executive branch of the government, in this case the president, could try to mislead the courts about the real purpose or intent of a particular order or action.

    Oh, no! The president is being less than entirely truthful about a key issue? How could that be possible? That is what Barnes seems to be saying, in a throwback to a statement attributed to Richard Nixon that if the president does something, it must be legal.

    Specifically, Barnes takes issue with the language in the majority decision by the 4th Circuit's Chief Judge, Roger Gregory, that Trump's six Muslim country ban on entry to the US (often misleadingly called a "travel ban" since the 180 million people affected by the order, 99 percent of whom are Muslims, are free to travel wherever they want - just not to the US), that Trump's order "drips with religious intolerance, animus and discrimination".

    (One could legitimately ask whether the Muslim ban order is based on anything other than religious intolerance, but I will return to Barnes' article.)

    Barnes dismissively writes:

    "But it's worth another look at the remarkable rhetoric in Chief Judge Roger L. Gregory's majority opinion, which concludes that the 'true reason' for the travel ban was not protecting the nation's security but making good on a campaign promise born of anti-Muslim bias.

    As Harvard law professor Noah Feldman put it in an essay for Bloomberg News, 'It's extraordinary for a federal court to tell the president directly that he's lying. I certainly can't think of any other examples in my lifetime.'"

    Maybe there has been no similar example of a president's being less than candid with a court about bias against a particular ethnic or religious group as being the real reason for an executive order ostensibly dealing with national security during the lifetime of Professor Feldman, who was born in 1970 according to Wikipedia, but there has certainly been such an example during the lifetime of anyone who has reached the age of 73.

    That example is known as US v. Korematsu
    (1944).

    In that case, the Supreme Court took President Roosevelt's national security pretext for obvious racial bias at face value, and Congress apologized for it four decades later in a statute signed by President Reagan.

    Will a future president and Congress need to do the same thing if the Supreme Court upholds Trump's Muslim ban order?

    The real issue facing the 4th and 9th Circuit Courts, and which will face the Supreme Court if there is an appeal and the High Court decides to take the case, is not whether the president was lying about the real reason for the Muslim ban order, but whether the courts should recognize that he was telling the truth.

    As Judge Gregory recited in his decision, Trump showed the true reason for the ban, namely what the decision euphemistically calls "animus" against Muslims based on their religion, over and over again, during the campaign.

    Trump also continued this bias by his actions as president in appointing notorious Islamophobes such as Michael Fynn, Stephen Bannon and Stephen Miller to top positions, and, according to news reports, giving at least the latter two a major role in drawing up the ban orders, to the exclusion of his real national security officials.

    The issue in the Muslim ban lawsuits is not whether the courts have the power to accuse the president of lying, as Barnes suggests; it is, as Judge Gregory also stated in his decision, whether they are required to remain blind to the obvious truth.
    ________________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from many different parts of the world obtain work visas and green cards.

    Roger's practice is concentrated in H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee work visas; and in green cards through labor certification and through marriage. Roger's email address is algaselex@gmail.com










    Updated 05-29-2017 at 01:26 PM by ImmigrationLawBlogs

  3. Latino US Citizen is Detained by ICE in Donald Trump Era. Another Warning That President's Deportation Agenda Hurts Americans Too. Roger Algase

    In one more story about how Latino and other minority US citizens are being put in greater danger of ICE detention and fear of deportation in the Donald Trump era, the Los Angeles Times reports on May 24 that a US born Latino woman from San Bernardino, CA Guadalupe Plascencia, was detained and held for an entire day in ICE custody after being released from a local detention center, where she had been held on a bench warrant for allegedly failing to appear in court as a witness many years before.

    The newspaper reports as follows:

    "But as she tried to leave the West Valley Detention Center in Rancho Cucamonga, Plascencia said she was met by immigration enforcement agents, handcuffed and placed in the back of a van. Plascencia would spend the rest of the day in ICE custody, fearful that she would be deported despite becoming an American citizen some 20 years ago, following an amnesty program initiated by Ronald Reagan.

    'I felt helpless, like I was no one', she said in a recent interview. 'Here they talk about rights...in that moment, I realized, we don't have rights.'".

    According to the news story, Plascencia repeatedly insisted to ICE officers that she was a US citizen and showed them her California driver's licence, without avail.

    Finally, she was released after her daughter showed ICE her mother's passport, and she is now preparing a lawsuit against ICE. She also told the LA Times that she was verbally abused by ICE agents during her detention and told that she was "no one" until her status was cleared up.

    The full story is at:

    http://www.latimes.com/local/lanow/l...524-story.html

    There have been many press reports about how happy some ICE officers are that they are now "unchained" from previous Obama-era restrictions on whom they could arrest or detain, and that they are now free to "do their job".

    In Donald Trump's America, does "doing their job" also include detaining or arresting US citizens who may "look" as if they belong to a Latino or other non-white minority?

    Roger Algase
    Attorney at Law

    Updated 05-26-2017 at 10:55 PM by ImmigrationLawBlogs

  4. 4th Cir. Upholds Stay of Muslim Ban Order: Majority and Dissent Both Misinterpret Key Phrase in Supreme Ct. Decision. Roger Algase

    On May 25, the full U.S. 4th Circuit Court of Appeals, in a 10-3 decision, upheld most of a District Court's injunction against the president's revised executive order barring an estimated 180 million people from six more than 99 per cent Muslim countries from entering the United States for alleged national security reasons.

    The Court's majority determined that the president's asserted national security justification for the order was essentially a sham and was thrown in after the fact to try to justify a religious ban, in violation of the First Amendment to the Constitution prohibiting the government from disfavoring a particular religion.

    The full text of the decision, along with the concurring and dissenting opinions can be found at

    http://coop.ca4.uscourts.gov/171351.P.pdf

    The main issue in the case, International Refugee Assistance Project v. Trump, was whether the courts have the power to look behind the surface language of the Executive Order and analyze its history in order to determine its real; purpose, or whether they are bound by the four corners of the order itself.

    In his majority decision, Chief Judge Gregory quoted the old saying "None are so blind as those who will not see." and held that the courts, under the doctrine laid out in the controlling Supreme Court case of Kleindienst v. Mandel (1972), have the power to review a decision by the executive branch to deny a visa or entry to the US (to one person, in that case, not 180 million people) unless the decision to keep someone out of the US is for reasons that are "facially legitimate and bona fide".

    Judge Gregory ruled that Trump's six Muslim country entry ban met the test of being "facially legitimate" because the order nowhere mentions Islam as a religion, but, on its face, is based only on nationality.

    However, relying mainly, but not exclusively, on a long history of undeniably anti-Muslim statements that Trump made during the presidential campaign, and what the judge called the "vague" nature of the national security justifications set forth in the executive order, he held that the government failed to meet the second part of this test, namely that the order was issued in good faith.

    In his dissent, however, Judge Niemeyer argued that the courts have no power to look behind the reasons for an entry ban executive order unless the order shows on its face that it was issued in bad faith. Moreover, the dissenting judge argued, looking into a presidential candidate's campaign statements in order to determine the history of an executive order would inhibit free political debate.

    Without going at this time into the circumstances and history of Kliendienst v. Mandel, which I have written about previously, but just looking at the plain words of the key phrase, "facially legitimate and bona fide", which both the 4th Circuit's majority and dissent agreed was the controlling standard for determining the validity of the president's six country entry ban executive order, it is evident that both sides misinterpreted this phrase as applied to the case at hand.

    First, there can be no doubt that, purely as a matter of fact, Judge Gregory's majority opinion is unassailable in its conclusion that the executive order was issued in bad faith based on the history of Trump's constant attacks on Muslims as a religion during the campaign (such as, as quoted by the Court: "Islam hates us", to give only one example).

    Judge Gregory did not mention, but could have done so, that Trump also showed more than ample evidence of anti-Muslim animus after becoming president by appointing General Michael Flynn and Breitbart News Editor Stephen Bannon, both of whom are on record as making the strongest possible statements imaginable against Islam as a religion (Flynn called Islam as "cancer") as top presidential advisers.

    (According to news reports, Trump still even now regrets having fired Flynn in an unrelated scandal.)

    While Judge Gregory was unquestionably on solid ground on the question of the president's lack of good faith in issuing the order, as set forth in the above Mandel standard, the jjudge was mistaken in concluding that Trump's executive order met the first part of Mandel's two-part test, i.e. being "facially legitimate".

    Judge Gregory found that Trump's order was legitimate on its face because it did not specifically mention Muslims or target Islam as a religion. In other words (my own, not Judge Gregory's), since the order did not say: "I hate Muslims and I want to keep as many of them out of my country as I can legally get away with barring." it was "facially" acceptable.

    With all due respect to Judge Gregory, this was a clear misreading of Trump's executive order.

    How could a blanket order barring 180 million people (to use the figure Judge Gregory mentions in his decision), consisting of the entire population of six almost 100 percent Muslim countries (with only a few exceptions which Trump's own presidential spokesperson and adviser, Stephen Miller referred to as merely "technical" - see Judge Gregory's opinion), be anything other than a ban directed against Muslims as a religion on its face?

    Even the infamous 1880's and 1890's laws banning citizens of China, known at that time and to subsequent history as the "Chinese Exclusion Laws" did not ban every Chinese citizen - they "only" banned Chinese "laborers". Chinese citizens who were "merchants" were not covered by the ban.

    But no one ever argued, or has ever argued since, that the exclusion laws were not directed against Chinese as an ethnic group merely because there were some exceptions (in all likelihood many millions of people, if one counts all of the people in China at the time who would have qualified as "merchants").

    Indeed the Supreme Court itself, in the "Chinese Exclusion Case" (Chae Chan Ping, 1889), made clear in upholding the original exclusion law, that the intent was to bar Chinese immigrants because of their race.

    Therefore, Judge Gregory's finding that Trump's executive order was "facially legitimate", and was only defective because of its failure to meet the good faith requirement was incorrect.

    Turning to Judge Niemeyer's dissent, an equally serious, if not even more so, misunderstanding of the Mandel phrase "facially legitimate and bona fide" becomes apparent.

    Judge Niemeyer interprets the term "facially" to mean both "facially legitimate" and "facially" bona fide. But this is an obvious tautology.

    Under this interpretation, "legitimate and "bona fide " would mean the same thing, because a statement that is not in good faith on its face cannot possibly be "legitimate".

    Moreover, how can it ever be possible to tell that a statement is made in bad faith just by looking at the four corners of the statement itself? "Bad faith" always implies misrepresentation or intent to deceive.

    If a statement is based on a lie, how can anyone tell that merely from the statement itself, unless the statement admits that it is false, which never happens?

    (In that case, it would recall the ancient Greek paradox: "All Cretans are liars. I am from Crete. Am I lying or telling the truth?")

    Therefore, while Judge Gregory's conclusion was correct that the president's executive order was unconstitutionally invalid as religious discrimination because the national security justification was given in bad faith, he should also have determined that the order was illegitimate as prohibited religion discrimination on its face as well.

    With regard to Judge Niemeyer's dissent, the argument that the executive order was valid because it showed no sign of bad faith on its face, was flawed, because, by definition, it is virtually impossible for bad faith ever to appear on the face of any document, and one can only tell if there is bad faith through extrinsic evidence.
    _______________________________
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants (including H-1B, O-1, J-1 work visa and green card Labor Certification applicants, among others) from diverse parts of the world to realize their dream of living and working in America.

    Roger's email address is algaselex@gmail.com


    Updated 05-26-2017 at 04:54 PM by ImmigrationLawBlogs

  5. IER Settles Discrimination Claims Against Carrillo Farm

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    Click image for larger version. 

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    The Immigration and Employee Rights Section (IER) of the Department of Justice reached a settlement agreement with Carrillo Farm Labor, LLC, an onion farm in Deming, New Mexico, resolving an investigation of complaints that Carrillo Farm discriminated against U.S. citizens due to a hiring preference for foreign visa workers. This settlement is part of a Department of Justice enforcement initiative dedicated to combatting employment discrimination against U.S. workers.

    After investigating complaints filed on behalf of two U.S. citizens, IER determined that Carrillo Farm denied U.S. citizens employment in 2016 because it wanted to hire temporary foreign workers under the H-2A visa program. Under the anti-discrimination provision of the Immigration and Nationality Act (INA), it is unlawful for employers to intentionally discriminate against U.S. citizens because of their citizenship status.

    The settlement agreement requires Carrillo Farm to pay a civil penalty of $5000 to the United States, undergo IER-provided training on the anti-discrimination provision of the INA, and comply with departmental monitoring and reporting requirements for two years. In a separate agreement with workers represented by Texas RioGrande Legal Aid, Carrillo Farm agreed to pay a total of $44,000 in lost wages to affected U.S. workers.

    This is an interesting twist on discrimination – finding an employer discriminated against U.S. citizens. This settlement fits in well with DOJ’s recent announcement warning employers not to discriminate against U.S. citizens.
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