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  1. INA 212(f): Trump's path to dictatorship over immigrants and US citizens? Pt. 2. Roger Algase

    First, I want to thank the readers who took the time to read my comments on this subject in Part 1 posted on the morning of September 19, and to share their reaction.

    One theme that seems to have been common to more than one of the people who wrote comments is that INA Section 212(f), which gives the president broad powers to exclude immigrants based solely on his/her own determinations is primarily an anti-terror statute.

    One comment, for example, describes the law as giving the president power to exclude immigrants who are a "danger" to the US. In reality, the word "danger" or "dangerous" appears nowhere in this provision, which I quoted in full in Part 1 of my comments.

    The operative words in the statute are much broader, namely immigrants who are "detrimental to the interests" of the United States.

    Of course, this obviously includes immigrants who are a "danger", but it goes far beyond that. A president could find that immigrants are "detrimental" to the interests of the United States for almost any reason that he or she could conjure up - economic, social, or (and I know that some people don't like it when I use this word) racial.

    It may be taboo among some people to bring up this subject now, but for most of our history, race was not only not taboo when crafting immigration laws, but it was considered essential.

    This was certainly true when the first Chinese exclusion law was enacted in the 1880's, and it was true when the "Nordics -only" Johnson-Reed immigration act was enacted in 1924. This is to name only two of the most famous (or infamous) immigration laws in America's history that were openly based on racial considerations.

    This is why 1965 was one of the most momentous years in our entire immigration history, because that was the year when Congress abolished the 1924 law and, for the first time in more than 80 years (or perhaps the first time ever) instituted an officially race-neutral immigration system to America.

    That is why it is disturbing, to say the least, to read Trump's August 31 immigration speech and see his references to "outmoded", "fifty-year old" immigration laws which, in his view, need to be revisited.

    Another feature in Trump's Arizona speech also relates to the extremely broad scope of INA Section 21(f). This is the notion that there are allegedly too many immigrants; that we need to cut immigration down to "historical" levels.

    Does INA Section 212(f) give the president the power to find that law-abiding, hard working, tax-paying, productive legal immigrants who love their families just as much as Trump loves his own immigrant wife, along with his other family members, are "detrimental" to the interests of the US - simply because a president may think there are too many immigrants (especially non-white ones, which one has to suspect is a major concern among restrictionist legislators and organizations whose decades-long anti-immigrant rhetoric Trump, arguably, appears to have borrowed from in his Arizona speech)?

    Based on the plain language of this statute, the answer has to be "yes". The above consideration could certainly be a reason to bar any and all further immigration to the US under Section 212(f).

    This is an extremely broad and far-reaching statute - not just an anti-terror protection. And it is exactly the kind of law that Trump says he loves - and would like to use as president, according to his own statements as reported in the Washington Post on June 15. And, lest anyone accuse me of making "unsubstantiated" allegations about Trump. I will quote his exact statements as reported in that article.

    But first, i will quote Attorney Matt Kolken, whom the Washington Post, in the same article, reports as stating the following:

    "The immigration law was designed to give as much authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review these decisions".

    This is an entirely accurate assessment of Section 212(f), and also makes clear that this provision is not limited to dealing only with national security or terrorism issues, as some people mistakenly assume.

    Now, over to Donald Trump. This is what he has to say about Section 212(f), as quoted in the Washington Post (again, with apologies to any readers who may think that quoting Trump's own exact words about the immigration laws shows a lack of proper respect for America's potential next Leader and who seek to raise a Furor over that issue).

    First, Trump is quoted as follows on June 13:

    "The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons. Now, any class - it really is determined and to be determined by the president for the interests of the United States. And it's as he or she deems appropriate."

    The WP also quotes Trump as saying the following on the same day, June 13:

    "The president has the right to ban any group or anybody that he feels is going to do harm to our country. They [the presidents] have an absolute right...And so the president of this country has the right to do this."


    Let me begin by defending Trump with regard to the above quotations against any possible accusation that he misrepresents or distorts the immigration laws. In this case, Trump's characterization of INA Section 212(f) is entirely correct - except for one little quibble:

    This section does not give the president authority to ban everyone from entering the US. The law only applies to "aliens" (a pejorative term for foreign citizens or immigrants, based on a Latin word which, among other things, means "strange" or "hostile", and which no longer belongs in our laws - if it ever did - and hopefully will one day be removed as part of a Comprehensive Immigration Reform law).

    But other than the fact that the president has no power under this law to bar US citizens from entering the United States, Trump is totally right about the content of this section, and especially in his use of the word "absolute" to describe the power it confers on the president to bar foreign citizens.

    But the word "absolute" in Trump's above quoted remarks, while "absolutely" accurate, should also be a matter of concern to those who care about America's democracy for exactly that reason.

    It is also noteworthy, that while Trump's above quoted interpretations of INA Section 212(f) were made in response to a horrific mass killing which of course raised serious concerns about terror and national security, the clear implications of his remarks go far beyond questions of publkic safety and security, and into the realm of "absolute" power, to use Trump's own word.

    For reasons that will be explained further in my next post, this could be well looked at as an example of Trump's entire presidential campaign in microcosm, one in which preying on fear of Muslim and other minority immigrants could become a stepping stone to seizing absolute power.
    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 diverse parts of the world and ethnic/religious backgrounds obtain work visas and green cards.

    Roger's email address is

    Updated 09-20-2016 at 10:20 AM by ImmigrationLawBlogs

  2. Letters of the Week: September 19 - September 25

    Please email your letters to or post them directly as a comment below.
  3. 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.
  5. 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:
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