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  1. Could President Trump Jail American Citizens For Supporting Immigrants? Roger Algase

    Most discussion about Donald Trump's anti-immigrant agenda is based on the assumption that his draconian immigration "enforcement" proposals, including mass deportation of targeted ethnic minorities on a scale that would have been familiar to Hitler Stalin, Mao or Pol Pot, but is much greater than anything previously imagined in America; his world-wide ban on entry by non-US citizens belonging to one of the world's major religions, and his proposal to build a Mexican Border Wall reminiscent of the Berlin Wall under communism or the Warsaw Ghetto Wall under the Nazis, would only affect the rights of immigrants, not those of US citizens.

    But nothing could be further from the truth. 8 U.S.C. Section 1324 reads in relevant part as follows:

    (a) Criminal Penalties:


    (A) Any person who -

    (ii) knowing or in reckless disregard of the fact that an alien has come to, has entered, or remains in the United States in violation of law, transports, moves or attempts to transport or move such alien within the United States within the United States by means of transportation or otherwise, in furtherance of such violation of law;

    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered or remains in the United States in violation of law, conceals, harbors, harbors or shields from detection, or attempts to conceal, harbor or shield from detection, such alien in any place...



    (l) engages in a conspiracy to commit any of the preceding acts, or

    (ll) aids or abets the commission of any of the proceeding acts,

    shall be punished as provided in subparagraph (B).

    The above, on its face, is an extremely broad statute which, under the present administration, is enforced mainly or exclusively against professional smugglers or trafficers. But read literally, this statute could apply to almost anyone who encounters or has any contact with a non-US citizen who happens to be in the United States without permission, including not only illegal entrants and visa overstays, but people who may have legal visas but who may be in violation of the terms of their visa.

    Nothing in this statute, for example, would, on its face, exempt a taxi driver or even a bus driver who accepts a passenger who has a foreign accent or who "looks foreign" such as someone of Latino or Asian appearance, or who, for example, happens to be wearing a Muslim headscarf. Does the term "reckless disregard" of the fact that someone is "illegal" create a duty for check that person's immigration status before giving the person a ride?

    Or what about a person driving his or her own private car who gives a lift to someone he or she may have met at a party or other gathering, or even a personal friend, who has a foreign accent or who "looks foreign". Is the driver under a duty to check the passenger's papers first?

    But the next section is even broader. Is an emergency room doctor, nurse or attendant under a duty to check the immigration status of a patient who may have an accent, have difficulty speaking English, or simply "look foreign" before giving a consultation or treatment? Would failure to do this be considered to be a conspiracy to permit an unauthorized immigrant to remain in the United States illegally, or would it constitute aiding and abetting such a person in doing so?

    And to give another example which affects millions of American citizens, what about US citizens who are married to or are the children of unauthorized immigrants? Are they aiding and abetting their husbands, wives, mothers or fathers in remaining in the US illegally if they don't turn their spouses or parents over to the DHS for deportation?

    The usual answer would be that, in a democracy such as the United States, it would be unthinkable to enforce the immigration laws in a way that would turn child against parent, or husbands and wife against each other (not to mention preventing lawyers from giving advice to clients who might be out of status). This kind of enforcement action would only be found in a totalitarian dictatorship.

    This is where a May 18 Washington Post article about Donald Trump's candidacy by Robert Kagan, a leading neoconservative, called

    "This is how fascism comes to America"

    becomes relevant. See

    While "fascist" is a strong and highly charged word which can all too easily be used as an epithet rather then a term for analyzing policy, Kagan's article contains a serious, and chilling, discussion of the way in which anti-immigrant and anti-minority feeling among certain sections of the public can be used as a means to overthrow democracy. He writes the following concerning Trump's campaign statements regarding immigrants and other targeted groups:

    "They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, resentment and anger. His public discourse consists of attacking or ridiculing a wide range of 'others' - Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees - whom he depicts either as threats or as objects of derision."

    And what could happen to our democracy if exploiting popular anger, prejudice and hatred against immigrants and other unpopular minorities catapults Donald trump to the presidency of the United States?

    Kagan writes:

    "Imagine the power he would wield then. In addition to all that comes from being leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services,, the military. Who would dare to oppose him then?...And is a man like Trump, with infinitely greater power in his hands, likely to become more humble, more judicious, more generous,, less vengeful than he is today, than he has been his whole life? Does vast power un-corrupt?

    This is how fascism comes to America, not with jackboots..."

    In this last sentence, Kagan appears to overlook Trump's "Special Deportation Task Force", which his former opponent for the nomination, Sen. Ted Cruz, aptly referred to as "jackboots".

    When anti-immigrant hatred is combined with absolute power, can anyone possibly say that American citizens will be safe from the threat of going to jail for not reporting of turning in their closest family members for deportation, or for giving even the most innocent advice or assistance to casual acquaintances or strangers without checking their citizenship or immigration documents first?​

    As Cicero wrote:

    Multi cives aut ea pericula quae imminent non vident, aut ea quae vident neglegunt.

    ("Many citizens either fail to see the dangers right ahead of them, or they see the dangers but disregard them.")

    Roger Algase
    Attorney at Law
    New York NY

    Updated 05-21-2016 at 04:25 PM by ImmigrationLawBlogs


    by , 05-18-2016 at 12:08 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    AILA recently published its May ďCheck-In with CharlieĒ. The Check-In is a Q&A with the Department of Stateís Chief of the Visa Control and Reporting Division. Charlie is ultimately the person responsible for the publication of each monthís Visa Bulletin. This monthís Check-In provided these insights into the Visa Bulletin for Beneficiaries of the most common employment-based immigrant visas.

    The EB-2 date will only advance slowly for the remainder of the US Fiscal Year, i.e. until October 1, 2016. The EB-3 date will also move slowly for the rest of this fiscal year.

    China. EB-2 China has a more favorable date than EB-3 China. This is expected to remain in place for the remainder of the fiscal year. Since China EB-2 is now more favorable than China EB-3, it is expected that EB-3 ďdowngradesĒ will end.

    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. The Great S-Visa Hoax

    The S visa--colloquially known as the "snitch" visa--is a visa available for aliens who cooperate with law enforcement officers. The S visa is a non-immigrant visa, but it can lead to a green card once "the individual has completed the terms and conditions of his or her S classification." "Only a federal or state law enforcement agency or a U.S. Attorneyís office may submit a request for permanent residence as an S non-immigrant on behalf of a witness or informant."
    The only confirmed case of an alien actually receiving an S visa (and I am not 100% sure my source is credible).
    In other words, when an alien cooperates with the government in a criminal investigation, the government can apply for the alien's lawful permanent residency--the alien himself cannot independently apply for the green card.

    The number of S visas available nationwide is quite limited. According to the Justice Department, 200 visas are available each fiscal year for "aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year [are available] for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State's rewards program."

    While the visa is rarely granted, it seems to be regularly promised. The result: Many aliens who cooperate with law enforcement expect to receive an S visa, only to be left with nothing. I've recently witnessed this phenomena in a few of my own cases.

    In one case, a young women was enlisted by her boyfriend to transport heroin from her country to the U.S. She was captured on arrival and immediately cooperated with American law enforcement. Thanks to her assistance, several drug traffickers were arrested and prosecuted. In the course of the criminal investigation, law enforcement officers promised her an S visa. Once the investigation was complete, the government failed to deliver the S visa. My client was eventually released from jail, married, and started a family. DHS left her alone for a while, but eventually placed her into removal proceedings. She now fears (quite reasonably) that the drug traffickers she informed on will seek revenge against her if she returns to her country. We applied for deferral of removal under the Convention Against Torture (the only relief she was eligible for after her conviction). However, because she was such a low-level member of the conspiracy, she was unable to identify specifically who might harm her in her country. DHS fought hard to have her deported, and the Immigration Judge ultimately found that we could not demonstrate a more-likely-than-not probability of torture, so she now faces deportation. What particularly bothers me about this case is that my client's cooperation led directly to her fear of harm, but the U.S. government didn't care. When they got what they wanted from her, the law enforcement agents dropped her like yesterday's news.

    In a second case, my client discovered that his attorney was operating a scheme to file fraudulent employment-based immigration petitions and false asylum claims (and no, I was not his attorney at the time - sheesh). He reported the fraud to law enforcement and actively participated in the investigation. In the end, the attorney was sentenced to prison and disbarred. Throughout the investigation, DHS and the FBI repeatedly--and in writing--promised the client an S visa and told him that the visa was being processed. Once the investigation ended, law enforcement suddenly changed their mind and informed my client that they would not pursue an S visa for him. The client had a legitimate claim for asylum, but he failed to file a case because he was relying on the U.S. government's promise of an S visa. As a result, he missed the one-year filing deadline to submit his asylum application (an asylum applicant must file his case within one year of arrival in the U.S. or meet an exception to the one-year filing requirement; otherwise, he is ineligible for asylum). We litigated the case in court. In the end, the Immigration Judge denied asylum because the client had not filed within one year of arrival. The Judge found that reliance on the government's promise of an S visa did not qualify as an exception to the one-year bar. Instead he granted my client withholding of removal, a less-desirable form of relief.

    In both these cases, the government promised something, my clients relied on the promise, and the government failed to deliver. I understand the government's need to obtain cooperation from witnesses, even to the extent that government agents lie to witnesses to secure their assistance. However, in the case of the S visa, some cooperating witnesses (like my clients) face real harm--including possible persecution or death in the home country--when the government breaks its promise.

    So what can be done?

    It seems to me that any alien who relies on the goodwill of the government in an S visa case is being taken for a fool. The offer of an S visa is not enough--cooperating witnesses need an attorney to press the government to keep its word. And this is not something that can be done after the criminal investigation is complete. Once the government gets what it wants (i.e., cooperation), there is nothing to prevent it from reneging on its promise.

    Aliens with potential asylum claims are particularly vulnerable. For them, I would want a letter from the ICE Office of the Chief Counsel agreeing that the S-visa process constitutes "exceptional circumstances" excusing the one-year asylum bar. That way, in the (likely) event that the S visa does not come through, at least the alien will not be barred from seeking asylum because she missed a deadline.

    In short, if law enforcement officers promise you an S visa, you should understand that in many cases, they will not follow through with their promise. But if you take steps to compel the government to issue the S visa, and you have a back-up plan in the event that the S visa does not come through, you will maximize the chance that your cooperation will lead somewhere other than a dead end.

    Originally posted on the Asylumist:
    Tags: asylum, s visa Add / Edit Tags
  4. November 9, 2016: Preseident- Elect-Trump Plans To Ban All Immigration. Roger Algase

    Update, May 18, 4:48 pm

    My following thoughts about what might happen in a Donald Trump presidency, as set forth in a fictitious news headline dated the day after this fall's presidential election, may seem totally impossible to some readers.

    This is based on the theory that Donald Trump may be bad for the future of immigration in America, but he can't possibly be all that bad, and that, anyway, we will have the Constitution and Congress to rein him in if he goes too far. Besides, some people also argue, we will never have to deal with the prospect of a Trump presidency, because Hillary Clinton will beat him anyway.

    I am not in the business of predicting election results. But anyone who cares about the future of immigration, and beyond that, democracy in America, has to look at Trump's policy statements to date on immigration and related issues affecting our democratic system carefully, and consider seriously where they could lead.

    As Cicero said some 2,000 years ago:

    Multi cives aut ea pericula quae imminent non vident, aut ea quae vident neglegunt.

    My translation is:

    "Many citizens either fail to see imminent danger, or having seen it, fail to take action."

    Cicero, one of the greatest lawyers and writers ever known to Western civilization, witnessed and spoke out against the rise of one of history's most famous dictators, or would be dictators. Could he have also been looking ahead to our own time?

    My original post follows.

    Will the following be the headline of the day on November 9?

    "President-Elect Donald Trump Announces Ban On All Immigration As Soon As He Is Inaugurated"

    And will this be the accompanying news story?

    "Donald Trump, who won a landslide election victory against Hillary Clinton on Tuesday, winning every state except Hawaii (with California still too close to call), has announced that his first action on taking office as America's 45th president will be to issue an executive order banning all further immigration to the United States, including visitors, from the entire world.

    The ban will continue at least until every single last one of the estimated 12 million "illegal aliens" who are now in the United States has been deported. At that time, Trump said, he will review the ban to see if any blanket exceptions can be made.

    Waivers will also be available to selected individuals who will be allowed into the US on a case by case basis, with preference given to individuals from countries which share a common "history and culture" with the US. Later, a spokesperson for the Trump transition team refused to say which countries were indicated, stating that "Mr. Trump can speak for himself."

    After his stunning victory over an opponent who turned out to be the weakest Democratic presidential candidate since George McGovern and Michael Dukakis, and who was never able to decide on a line of attack against Trump but spent the entire campaign waiting for the results of various focus groups, Trump said that it was now time to "take America back" to its "real identity and origins", so that "we would have a country again".

    In order to do this, Trump added, it would also be necessary to review the immigration and citizenship status of every immigrant who had come to the US in the past 20 years, and their "anchor baby" descendants, with a view to revoking green cards and US citizenship of every such person whose presence in the US was not in America's best interests.

    His spokesperson also refused to clarify that statement. The President-Elect also pledged to initiate steps to repeal or overturn the 14th Amendment's guarantee of birthright citizenship for all US born children, as well as to repeal or suspend the Constitutional two-term limit for holding the office of president.

    'Our country's traditions and values have been distorted for the past fifty years by a 1965 law which has resulted in uncontrolled immigration from all over the world, and it will take me a long time to fix that' Trump said. 'Two terms as president will not be enough'.

    Trump warned that since his immigration actions were critically important for not only America's security, but its 'identity', any elected official or private person who tried to oppose them would be prosecuted to the fullest extent of the law, and that a series of executive orders would be issued to effectuate this policy as soon as he moved into the White House."
    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from many different parts of the world obtain work visas and green cards. Roger's email address is

    Updated 05-19-2016 at 12:22 PM by ImmigrationLawBlogs

  5. Obama Admin Charged with Violating Court Order on Detaining Refugee Children

    by , 05-18-2016 at 08:27 AM (Matthew Kolken on Deportation And Removal)
    The Obama administration has landed back in Court due to their policy of locking Central American mothers and children in jails where they are deprived of decent food, water and sanitary conditions, and forced to sleep on a concrete floors.

    A motion was filed in the U.S. District Court of Central District of California last night that alleges that the Obama administration has violated U.S. District Judge Dolly Gee's previous ruling prohibiting the extended incarceration of children in jails. Judge Gee ruled that the Obama administration child detention policy was in direct violation of a settlement dating back to January 28, 1997.

    Peter Schey, President and Executive Director of the Center for Human Rights and Constitutional Law, commented that the Obama administration has engaged in conduct that is “lawless and contemptuous,” and has "consistently violated the Settlement since the summer of 2014 and this Court’s Orders since August 2015.” Mr. Schey remarked that "a detention system that is incompatible with the concept of human dignity and has no place in a civilized society."

    Thank you Mr. Schey for your humanity.

    Click here for the original source of this story.

    Updated 05-18-2016 at 10:53 AM by MKolken

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