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  1. Updates on the Executive Orders: The Umpire Strikes Back

    President Trump's Executive Orders ("EOs") on immigration triggered a series of lawsuits that are still playing out in federal courts across the nation. The lawsuits have resulted in orders barring certain portions of the EOs, at least for the time being.
    Judge James Robart: Referees helping Refugees.
    For those not familiar with the U.S. system, we have three (supposedly) co-equal branches of government: The executive (the President), the legislative (Congress), and the judicial (federal courts). The judicial generally acts as an umpire or referee, making sure that the other branches play by the rules, or in this case, the Constitution and laws of the United States. What has been happening with the EOs is that the President is asserting his authority over immigration (and the President does have broad authority over immigration), but he is constrained by the U.S. Constitution and the existing immigration law. The lawsuits argue that the President has overstepped his authority, and so far, most courts have agreed to issue preliminary orders blocking the EOs, at least until the courts can more fully analyze whether the orders comply with the law.

    Probably the broadest decision thus far issued was by a U.S. District Judge in Seattle, James Robart. The lawsuit was brought by Washington State and the state of Minnesota in their role as "parens patriae of the residents living in their borders." The decision temporary stays several key portions of the EO related to terrorism based on the Judge's conclusion that the states' lawsuit was likely to succeed on the merits and that the states face "immediate and irreparable injury" as a result of the EOs. Specifically, the Judge found that the EO "adversely affects the States' residents in the areas of employment, education, business, family relations, and freedom to travel." In addition, the Judge found that, "the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injuries to the States' operations, tax bases, and public funds." Thus, the Judge issued a temporary restraining order against the EO. The order blocks portions of the EO nationwide, and will remain in effect until the Court can reach a decision on the merits of the lawsuit (or until it is overturned by a higher court).

    The President, through the Department of Justice, filed an appeal, but the U.S. Court of Appeals for the Ninth Circuit has thus far refused to overturn the District Judge's order. So what does all this mean?

    First, according to its website, USCIS "continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, 'Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.'" This means that even if you are from one of the "banned" countries--Iraq, Iran, Syria, Sudan, Somalia, Libya or Yemen--your case will be processed as before the EO. So USCIS should continue to issue decisions for nationals of such countries, at least for the time being.

    Second, the State Department will resume issuing visas for people from the listed countries, including refugees. U.S. visas for nationals of these countries that were "provisionally revoked" are now "valid for travel to the United States, if the holder is otherwise eligible." Meaning that if you are from a banned country and you have a valid U.S. visa, you should be able to enter the United States. Again, the Judge's order is temporary, and it may be overturned, so if you have a visa and wish to come to the United States, you should do so immediately, since we do not know for how long the Judge's temporary restraining order will remain in place.

    Third, DHS/Customs and Border Protection is also following the Judge's order, even if it is doing so reluctantly. From the CBP website:

    In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.

    So all people with valid visas and who are otherwise eligible to enter--including nationals of the banned countries--should be able to board planes, travel to the United States, and enter the country. In short, the Judge's order restores the situation for such travelers to how it was prior to the EOs.

    Finally, I wrote in an update to last week's post that additional countries may be added to the banned list. As long as the Judge's order is in place, I doubt that will happen, and--more importantly--the State Department informed the American Immigration Lawyer's Association that there was no "addendum, annex or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in [the] Executive Order." Hopefully, this means that we will not see additional countries added to the "banned" list.

    The legal fight over the EOs is a rapidly moving target, so before you make any travel plans, please check the news or check with a lawyer to make sure there are no additional changes affecting you. I will also try to keep posting updates here.

    Originally posted on the Asylumist:
  2. Letters of the Week: February 6 - February 12

  3. Do you remember my article, "If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens"

    Do you remember my article last year, ďIf he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliensĒ?
    By Nolan Rappaport

    I made two predictions. First, that if elected, Donald Trump would use section 212(f) of the Immigration and Nationality Act (INA) to establish a temporary ban on Muslim alien admissions.

    Second, that he would base the ban on the provision in the INA for excluding nationals from the Visa Waiver Program who have been present in Iraq, Syria, or other designated countries at any time on or after March 1, 2011, instead of imposing a ban on all Muslim aliens.

    The article also provides information about the nature of the 212(f) authority and a brief history of how previous presidents have used it.

    If he is elected to the presidency, Donald Trump will have statutory authority to
    suspend the entry of all Muslim aliens (April 20, 2016).
    By Nolan Rappaport

    In a news release on December 7, 2015, Donald J. Trump called for ďa total and complete
    shutdown of Muslims entering the United States until our country's representatives can
    figure out what is going on.Ē

    To put this in perspective, this is just a campaign talking point. It is by no means a certainty that he actually would do this if he were to be elected. Nevertheless, he may intend to impose a temporary ban of some kind on Muslim admissions to the United States if he is elected and our country's representatives still have not figured out ďwhat is going on.Ē Would he have the authority to do it? Yes, in fact, the discretionary power of the president to suspend alien admissions to the United States is much greater than his prosecutorial discretion over the enforcement of the immigration laws. The president has explicit statutory authority to suspend all or any class of alien admissions by issuing a proclamation saying he has found that the suspended alien admissions were detrimental to the interests of the United States, and his suspension can last as long as he deems necessary. Moreover, waivers are not available. This authority is provided by section 212(f) of the Immigration and Nationality Act (INA), which reads as follows:

    Whenever the President finds that the entry of any aliens or of 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 as he shall deem necessary, 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.
    Whenever the Attorney General finds that a commercial airline has failed to
    comply with regulations of the Attorney General relating to requirements of
    airlines for the detection of fraudulent documents used by passengers traveling to
    the United States (including the training of personnel in such detection), the
    Attorney General may suspend the entry of some or all aliens transported to the
    United States by such airline (Emphasis added).

    The fraudulent document part of this provision was added by section 124(b) of the Illegal
    Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

    Although section 212(f) has been in the INA since it was enacted in 1952, it only has
    been employed in relatively limited circumstances. Usually, it has been used to bar the
    entry of persons who have engaged in conduct deemed contrary to United States interests,
    such as undermining democratic institutions in a particular country, or engaging in
    human rights abuses, or other conduct deemed objectionable. It also has been employed,
    however, in other types of situations, such as interdicting Haitian nationals on the high
    seas and returning them to Haiti.

    Read more at Ė,0420-Rappaport.pdf

    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 twenty 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.

    Updated 02-07-2017 at 09:45 AM by ImmigrationLawBlogs

  4. Trump's Authoritarian Muslim Ban isn't Temporary, Limited, or About National Security. Nor is it Constitutional. But it is about Muslims. Roger Algase

    The following comment has been revised and updated as of 11:10 am, February 6.

    In Europe, beginning in the 10th Century and continuing until the beginning of the 19th, there was an alliance among rulers known as the "Holy Roman Empire". The French philosopher Voltaire famously said the only thing wrong with with using this name (Sacrum Imperium Romanum in Latin) is that the alliance wasn't Holy, wasn't Roman, and wasn't an Empire.

    In the same way, Donald Trump's unilateral "temporary", "limited" ban on immigration affecting nearly 200 million people from seven Muslim countries, and on refugees from all over the world, in the interests of "National Security", is neither temporary, limited, or based on National Security. Instead, it is an attempt to put America's entire system of admitting foreign citizens under one-man control, with implications that could undermine the rule of law in every aspect of American society. See:

    Indeed, Trump's Justice Department lawyers are now arguing in the 9th circuit Federal Court of Appeals that INA section 212(f) in effect gives the president the same powers as a dictator, accountable only to himself, in deciding which foreign citizens can be admitted to the United States.

    See: Huffington Post, February 5:

    Trump Lawyers To Court Reviewing Muslim Ban: Stay Out Of It

    This argument, which has enormous implications not only for immigrant rights, but for the freedom of all Americans, will be examined more closely in my upcoming comment, which will also show that the doctrine of executive "Plenary Power" over immigration, which is at the heart of Trump's argument, does not apply when the rights of American citizens are affected, something that is unquestionably the case here, as the states of Washington, Minnesota and a host of private organizations are arguing before the 9th Circuit as this is being written.

    But, first, let us look at an argument which is being made in some quarters to the effect that Donald Trump's January 27 order isn't really a "Muslim ban" because other immigrants from all religions and every country could be affected too.

    It is true enough, as will be shown in more detail in my next comment on this topic, that Muslims may not be the only immigrants affected by Trump's ban. But that does not mean that Muslims are not the primary targets, just as the 1936 Nuremberg Laws in Germany were aimed against the Jews, even though they ultimately led to the loss of freedom for everyone living in Germany.

    Despite the clumsy attempts in Trump's January 27 order to hide its anti-Muslim bias behind a thin veneer of pretense of supposedly refining immigrant and refugee screening procedures, the history of anti-Muslim rhetoric by Trump and his top immigration advisers during and after the presidential campaign can leave no doubt about the order's real purpose.

    See Slate:

    Trump's executive order on immigration is a Muslim ban.

    (Sorry, I do not have a link to this article. Please go to Google.)

    In the words of the above article, there is a "mountain of evidence" that this was a principle purpose of the order, though certainly not its only purpose.

    It is not necessary to rehash all the statements that Trump made during the campaign about Muslim terrorists who were allegedly "pouring" into the US at the invitation of Barack Obama and Hillary Clinton, whom Trump, labelled as "founders and MVP's of ISIS" in order to understand Trump's real purpose in drafting the seven country ban.

    Nor is it necessary to go into detail about Trump's threats to curtail the rights of US citizens who belong to the Muslim religion by registering them, setting up "databases", and conducting surveillance of their places of worship, let alone his appointment of Islamophobes such as Stephen Bannon, who thinks that the Muslim world is in a culture was with the "Judeo-Christian West" and Michael Flynn, who has called Islam a "cancer" rather than a religion, to high positions in his administration.

    Anyone who argues that Donald Trump's January 27 order is only a "per country" ban, and not one aimed against Muslims because of their religion, might just as well argue that America's WW2 Japanese-American internment was not racially motivated, since it only applied to Japanese living on the West Coast, not in other parts of the US.

    Or, even more absurdly, one might argue that the infamous late 19th Century Chinese exclusion laws were not racially motivated, because they only banned Chinese laborers, not Chinese "merchants". In spirit, and, arguably in the letter of his January 27 order as well, Donald Trump is taking America back to that dark time in our history.

    But let us move on. While it is undeniable that Trump's January 27 order targets Muslim immigrants primarily (and not only from the seven countries mentioned - it clearly contemplates adding other countries to the list, most or all of which would without any serious room for doubt turn out to be Muslim as well) - it also goes far beyond being merely a Muslim ban.

    There is language in Sections 3 and Section 4 of the order, to be discussed in my next comment on this topic, which could effectively seal off America's borders against all immigration (or at least against immigration from outside the white countries of Europe) in a return to the spirit of the 1924 Johnson-Reed immigration act for which both Stephen Bannon's Btreitbart News and Attorney General designate Jeff Sessions have shown so much sympathy, as i have discussed in previous Immigration Daily comments and also do not need to repeat here.

    I will have more to say about this larger objective of Trump's January 27 order in an upcoming comment.

    Roger Algase
    Attorney at Law

    Updated 02-07-2017 at 09:43 AM by ImmigrationLawBlogs


    by , 02-05-2017 at 10:46 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    Over the weekend a federal court in the State of Washington stopped President Trumpís three part ban on immigration of certain nationals. This Judgeís Temporary Restraining Order was affirmed by an appellate court shortly thereafter.

    Because this TRO is temporary, MU Law urges all nationals in the three classes listed below immediately to attempt to enter the United States. The TRO could be rescinded at any time. If the TRO is rescinded, the ban will go back into effect, in part or in whole.

    The three classes of individuals impacted by the ban:

    • Barring nationals of seven countries from entering the US for 90 days. The seven countries are: Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen. These nationals are barred regardless of whether they have cleared background checks and hold valid nonimmigrant (temporary) or immigrant (permanent) visas.

    • Suspending the U.S. Refugee Admissions Program (USRAP) for 120 days. This provision also says that once the 120 day period has ended, that the US government must prioritize refugee claims ďmade by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individualís country of nationality.Ē Since Islam is the majority religion in many countries, this provision appears aimed at prioritizing Christiansí refugee claims, which President Trump has stated is one of his goals.

    • Permanent suspension of all Syrian refugees until such time as President Trump sees fit to lift the permanent ban on Syrians.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook and follow us on Twitter.
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