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  1. 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

    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

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

  2. IER Settles Discrimination Claims Against Carrillo Farm

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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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.
  3. Fred Korematsu and the Forgotten Legacy of Lies

    Seventy-five years ago this week, Fred Korematsu was arrested on a street corner in San Leandro, California. His crime: Failing to report to an internment center for Japanese immigrants and Americans of Japanese decent who were detained en masse once the United States entered World War II.
    Fred Korematsu and the Presidential Medal of Freedom.
    After three months in pre-trial detention (he wasn’t released even though he posted bail), Mr. Korematsu was convicted in federal court for violating the military relocation order, sentenced to five months’ probation, and sent to an internment camp where he lived in a horse stall. He later said, “Jail was better than this.” Over 100,000 Japanese Americans were confined to such camps during the course of the war because the government feared they were disloyal (German- and Italian-Americans were not subject to such treatment).

    The American Civil Liberties Union (“ACLU”) represented Mr. Korematsu at trial and in his appeals. Eventually, the case reached the United States Supreme Court, which issued a 6-3 decision upholding the conviction as justified due to the circumstances of “direst emergency and peril.”

    Over time, the Supreme Court’s decision—and the internment of Japanese Americans—came to be viewed as a great injustice. President Ford issued a proclamation apologizing for the internment. A commission established by President Carter concluded that the decision to remove those of Japanese ancestry to prison camps occurred because of “race prejudice, war hysteria, and a failure of political leadership.” And President Reagan signed a bill providing compensation to surviving internment camp residents. In 1998, President Clinton awarded Mr. Korematsu the Presidential Medal of Freedom, stating:

    In the long history of our country's constant search for justice, some names of ordinary citizens stand for millions of souls: Plessy, Brown, Parks… to that distinguished list, today we add the name of Fred Korematsu.

    Mr. Korematsu himself remained active in civil rights until his death in 2005. After the September 11, 2001 terrorist attacks, he spoke out about how the United States government should not let the same thing happen to people of Middle-Eastern descent as happened to Japanese Americans during WWII. He also filed amicus (friend of the court) briefs in several cases involving lengthy detention of suspects at Guantanamo Bay.

    With the Trump Administration’s attempted crackdown on Muslim immigrants, Korematsu v. United States is again in the news. A few (misguided) individuals have suggested that Korematsu provides precedent for the President’s crackdown on Muslims (though it seems highly doubtful that any modern court would rely on Korematsu for precedent). Others view the case as a cautionary tale: We should not abandon our ideals in the face of a perceived threat.

    But there is another lesson from Korematsu; a lesson that has received surprisingly little attention in our “post truth” age: The U.S. government, including the Solicitor General who argued the case, Charles Fahy, knowingly lied to the Supreme Court about the alleged threat posed by Japanese Americans during the war, and those lies very likely influenced the outcome of the case.

    The government’s mendacity came to light in the early 1980’s when Peter Irons, a law professor writing a book about the internment camps, discovered that the Solicitor General had deliberately suppressed reports from the FBI and military intelligence which concluded that Japanese-American citizens posed no security risk. The documents revealed that the military had lied to the Supreme Court, and that government lawyers had willingly made false arguments.

    As a result of these discoveries, a District Court in San Francisco formally vacated Mr. Korematsu’s conviction on November 10, 1983--more than 40 years after he was found guilty. Mr. Korematsu told the Judge, “I would like to see the government admit that they were wrong and do something about it so this will never happen again to any American citizen of any race, creed, or color.” He continued, “If anyone should do any pardoning, I should be the one pardoning the government for what they did to the Japanese-American people.”

    In 2011, the Acting Solicitor General stated:

    By the time the [case of] Fred Korematsu reached the Supreme Court, the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court “might approximate the suppression of evidence.” Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.”

    [The District Judge that overturned Mr. Korematsu’s conviction] thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

    And so, the U.S. government recognized that its lies did real damage. Over 100,000 Japanese Americans were uprooted from their homes and lives, confined to camps, and excluded from American society. In addition, our country lost the benefit of those citizens’ contributions—to our nation and to the war effort.

    Yet here we are again. Refugees—particularly Muslim refugees—are painted as a threat to our security. The President says they are a “Trojan Horse” for terrorists. Precious little evidence supports these claims. And much of that evidence has been discredited. Indeed, to me, it sounds a lot like “race prejudice, war hysteria, and a failure of political leadership,” with an emphasis on the latter.

    Which all leads to the final point: Will the current Administration follow the lead of Solicitor General Fahy? If the evidence does not support its assertions about Muslim immigrants, will it suppress the truth? And how will judges respond? For now, it seems that our courts remain the only level-headed branch of government, and the only real bulwark against the bigotry and falsehoods peddled by our President. When the government ignores the evidence and makes policy decisions based on fantasy, it’s not just Muslims and immigrants who will suffer. Fred Korematsu is gone, but let’s hope his legacy is never forgotten.

    Learn more about Fred Korematsu and his on-going story at the Korematsu Institute.

    Originally posted on the Asylumist:
    Tags: korematsu, trump Add / Edit Tags

    by , 05-24-2017 at 09:05 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, which are the most popular categories for readers of this Blog. Here are some of this month’s highlights:

    EB-3 Worldwide. Charlie expects EB-3 Worldwide to continue to be “effectively current” for the foreseeable future.

    EB-3 India. Charlie predicts that the July final action date for EB-3 India will advance to October 15, 2005, which he reiterated at a May 18, 2017 meeting with AILA in Washington, D.C.

    EB-2 India. Previously, Charlie believed that this category will recover to FY2017’s final action date. Unfortunately, he no longer believes this to be the case. This category may retrogress or exhaust in August, until October 1, 2017.

    EB-3 Philippines. Charlie did not comment on EB-3 Philippines, but MU Law’s internal tracking indicates that this category will continue to progress at the same rate as the last few months.

    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. Trump's "Unimaginably Cruel" Budget Betrays his American Voters to Pay for Immigrant Detention and Border Wall. Roger Algase

    Donald Trump has released a budget proposal which would devastate millions of Americans who voted for him in the hope that he would protect or raise their standards of living, by cutting hundreds of billions of dollars from urgently needed lifelines for less affluent Americans, including Medicaid, Food Stamps, and Social Security Disability, in order to spend more money on, among other things, immigration judges, immigration focused US attorneys, deputy marshals and more prison space to detain unauthorized immigrants; and, last but not least, his obsession with the Mexican Border Wall.

    This is according to two POLITICO news reports:


    CNN now reports that Trump's proposed budget also includes $1.6 billion to pay for the first few dozen miles of the "bricks and mortar" wall.

    The Hill, in a May 23 story, quotes Hillary Clinton, who defeated Trump in the presidential popular vote contest by almost 3 million votes last November, as saying that Trump's budget reaches "an unimaginable level of cruelty" towards [American] children, people with disabilities, women and seniors.

    Certainly, some may try to dismiss these comments as merely partisan words from a "sore loser" (or popular vote winner, to be more accurate), but millions of working class and low income voters in Appalachia and other areas who gave Trump his electoral college victory may be forced to agree with her comment as they see their own children go hungry, or find themselves no longer able to see a doctor or go to the hospital when they are suffering from illness, due to Trump's proposed budget cuts.

    To paraphrase Marie Antoinette, it may be cold comfort for the millions of American families whose lives would be devastated by losing their "bread" due to these heartless cuts in essential programs, that they may be able to "eat the cake" of knowing that at least some of the money diverted away from these programs will be used to prosecute and lock up more Latino, Middle Eastern, Asian and black immigrants, in the case of most of whom their only "crime" consists of seeking a better life in this country, and to build a Wall as a symbol of the message that immigrants of color are no longer welcome in America.

    The terrible effect that Trump's shifting money over from programs desperately needed by millions of his own voters so he can cause even more panic, fear and despair among immigrants, and break up even more immigrant families, is just another of the many lessons that Americans are coming to learn in the "Donald Trump Era", showing that policies which are ostensibly directed only against immigrants can bring even greater suffering and hardship to Americans.

    We may be seeing many more such examples during whatever time may remain in Donald Trump's presidency, given the ongoing accumulation of scandals allegedly involving 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 diverse parts of the world obtain work visas and green cards.

    Roger's practice is concentrated primarily in H-1-B specialty occupation, O-1 extraordinary ability and J-1 trainee work visas; and in green cards through labor certification and through opposite sex or same sex marriage. His email address is

    Updated 05-24-2017 at 12:35 PM by ImmigrationLawBlogs

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