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  1. Congress unlikely to pay for border wall, but Trump has other options. By Nolan Rappaport

    © Getty

    President’s Trump appears willing to risk a government shutdown this fall in order to secure funds for his promised wall on the United States-Mexico border. His prospects are slim, considering Republicans lawmakers need the support of Democrats to pass a bill to fund the government.
    Trump has other options, however.

    If the president is unable to get funding for the wall, he will need another way to improve border security that Congress could agree to fund. An enforcement program to reduce the number of people making illegal crossings is a viable alternative.

    The program should include measures to prevent the removal of aliens who would benefit our national interests if they are allowed to remain. An enforcement-only approach would be counterproductive.
    Mexico certainly won’t pay for the wall. In a leaked phone conversationTrump had earlier this year with Mexican President Enrique Peña Nieto, Nieto said, “I have recognized the right of any government to protect its borders as it deems necessary and convenient. But my position has been and will continue to be very firm saying that Mexico cannot pay for that wall.”
    And Congress may not pay for it either.
    The House recently approved a spending bill that includes $1.6 billion towards building the wall, but it has stalled in the Senate. Senate Republicans apparently want to avoid the very same spending showdown with the Democrats that Trump is willing to cause.


    Published originally on The Hill.

    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 an 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.

  2. Letters of the Week: August 21 - August 27


    by , 08-21-2017 at 10:05 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 projections for EB-2 and EB-3, which are the most popular categories for readers of this Blog. Here are some of this month’s highlights, along with our analysis:

    EB-2 Worldwide. The Worldwide EB-2 should return to current in October and remain there for the rest of this calendar year.

    EB-2 India. This category is expected to use the full allotment of visas in September, which may result in the category becoming temporarily unavailable. Charlie hopes to advance the final action date to December 2008 in the 1Q 2018. It may advance into 2009 at some point in late FY2018.

    EB-2 and EB-3 China. In FY2018, EB-2 and EB-3 will return to the prior inverted condition where China EB-3 has a smaller retrogression than China EB-3. History tells us that this leads to China EB-3 “downgrades”.

    EB-3 Worldwide. This category will remain current or close to current for the foreseeable future.

    EB-3 India. This category will advance about one retrogress month by one real calendar month in FY 2018.

    EB-3 Philippines. It is not expected that FY2018 will be as positive as FY2017 was to this category. Charlie speculates, and Musillo Unkenholt can confirm based on our internal metrics, that progressions will slow in FY2018. We expect an average of about a 1.5-2-year retrogression in FY 2018.

    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook, Twitter and LinknedIn.
  4. Bannon's Ouster is Not Likely to Stop Trump's March Backward Toward the 1924 Europeans Only Immigration Regime. Roger Algase

    The media are now consumed with the news on August 18 that Donald Trump has suddenly (or maybe not so suddenly - there were warning signs according to many reports) fired Stephen Bannon as his senior strategist.

    Since Bannon, by all accounts, played a major role in Trump's Muslim ban and many other of his policies adversely affecting immigrants from non-white parts of the world, if not actually being the chief architect of these policies, there is speculation that Bannon's ouster may signify a big reversal for Trump on immigration, or at least a halt in his progress toward a whites-only immigration regime, as shown most recently in Trump's support for the RAISE Act.

    As I have mentioned in a recent comment, white supremacist leader Richard Spencer, who has added to his notoriety by his role in organizing the neo-nazi Charlottesville demonstration on August 12 has praised the RAISE Act as "awesome", and looking at this bill which would drastically cut all immigration from outside Europe it is easy to see why he thinks so. See:

    As for Bannon himself, his initial statement after being ousted would indicate that policy disagreements, not just White House personality disputes, or more presidential panic over the tightening net of the Mueller investigation

    (both of which are beyond the scope of my comments here) were at least a major factor in Bannon's forced departure.

    According to Bannon's statement (on August 18):

    "The Trump presidency that we fought for, and won, is over."

    Since immigration, especially involving exclusion and mass deportation of immigrants from non-European areas of the world, was clearly a key part of Bannon's vision for a Trump presidency, there might be reason to hope that Bannon's ouster might bring about some change in Trump's focus so far on using immigration policy to make America whiter.

    However, it could be even more likely that Trump, whose record during the presidential campaign, not to mention as president, has been full of disparaging remarks and hostile actions against Latinos, Muslims and other non-European immigrants, no longer needs Bannon and is now capable of imposing a whites-only immigration agenda on America without him. As David A. Graham writes in The Atlantic (August 18):

    "The one view that seems likely to persist, even without Bannon around, is Trump's embrace of the politics of white resentment and racially divisive rhetoric. In a sense, Trump is right that Bannon is a newcomer: Trump has flirted with racism for decades."

    (By the way, Mr. Graham, can we please stop using meaningless euphemisms such as "white resentment" or "white identity politics" when what we are really talking about is racism and hatred toward people of color which have been an unfortunate, but very real part of America's immigration history, ever since Chief Justice Roger Taney ruled in 1857 that black people could never be US citizens?)

    See also, Newsweek, August 18:

    Steve Bannon's Exit Won't Make Trump's White House Any Less Racist

    However, any analysis of what Trump's immigration policies might be without Bannon has to begin with a look at what Trump's policies in this area have been with Bannon.

    An excellent place to begin this examination is with a February 28 article in the L.A. Times by Brian Bennet entitled:

    The real goal of Trump's executive orders: Reduce the number of immigrants in the U.S.

    As the following discussion will show, the word "immigrants" in the title of Bennet's article should be taken to mean: "non-white immigrants".

    Bennet writes:

    "At the same time that the European share of migration has dropped, the overall foreign-born share of the US population has increased, quadrupling in the five decades since the 1965 Immigration and Nationality Act took effect. In 1960, the U.S. had 9.7 million foreign-born residents. In 2014, it had 42.2 million."

    He continues:

    "That change has alarmed right wing nationalists like Miller and Bannon, who see Trump's administration as an opportunity to change those migration trends for decades to come...

    Nations, including the U.S. are undermined by too high a level o diversity, Bannon has argued.

    'The center core of what we believe, that we're a nation with an economy, but not just an economy in some global marketplace with open borders, but we are a nation with a culture and a -a reason for being,' Bannon said."

    What does all this mean? A little earlier in the same article, Bennet quotes Tanya Golash-Boza, a sociology professor at UC Merced who studies immigration and race:

    If you were going to say, 'We don't like that equalization we did in 1965, we need to go back', that is going back to a time when the United States was more overtly racist..."

    Or from another vantage point, maybe the United States is going forward - to a white supremacist, neo-Nazi future, the future which the torch bearing demonstrators in Charlottesville holding signs saying "Blood and Soil" - a direct translation of the slogan"Blut und Boden" from the Hitler era - are hoping to have in store for America.

    From that perspective, Bannon's ouster is not likely to change the basic outlook in the Trump administration - that Latino, Muslim, Asian and African immigrants are dangerous for this country and do not really belong in America.

    Bannon, one can argue, has already done his damage to the race-neutral, color-blind (in principle) immigration system that America has had for the past 50 years. He (with the help of Stephen Miller, who still remains in the White House) has already given us the Muslim ban order which is now pending before the Supreme Court.

    Bannon has also unquestionably been a driving force behind Trump's expanded deportation dragnet, his "Hire American" executive order attacking mainly Asian H-1B workers, and most recently of all, Trump's support for the RAISE Act, which would drastically reduce legal immigration from non-white parts of the world - in a major step backward to the openly racist 1924 "national origins" immigration act which cut off immigration from Asia, the Middle East and Africa entirely, as well as barring all but a few Jews and Catholics from Eastern and Southern Europe - a law which Trump's Attorney General, Jeff Sessions, praised as a Senator in his 2015 immigration "Handbook" for Congressional Republicans - and which Adolf Hitler also praised some 90 years earlier in Mein Kampf.

    Justin Guest, a professor at George Mason University, gives a more complete list of Stephen Bannon's legacy of helping steer the Trump administration backward toward an earlier era of white supremacist immigration policies. He writes in The Guardian, on August 18, as follows:

    "25 January 2017: Heightened immigration enforcement and broadened the category of people subject to deportation.

    25 January: Ordered the construction of a border wall and the tripling of border agents.

    25 January: Ordered the removal of funding from so-called sanctuary cities.

    26 January: Ordered a weekly list of crimes allegedly committed by undocumented immigrants in sanctuary cities.

    27 January: Suspended the US Refugee Admissions Program.

    27 January: Ordered a ban on people from seven Muslim-majority countries.

    6 March: Ordered a ban on people from six Muslim-majority countries...

    2 August: Supported bill to cut all documented [legal] immigration into the U.S. in half.

    15 August: Declined to specifically condemn neo-Nazis and white nationalists after terrorist attack in Charlottesville, Virginia.
    (Italics added.)

    Can anyone argue, seriously and in good faith, that the last item in the above list, (which I have put in italics), namely refusing to denounce neo-Nazi and white supremacist violence explicitly, is not directly related to and intimately connected with the other eight items, all of them aimed at reducing or cutting off non-white immigration, in that same list?

    No reasonable person, no person of good will, could deny that connection with a straight face.

    Professor Guest sums up Bannon's main "achievement" as Trump's Senior White House adviser as follows:

    "Bannon's most attainable, sustainable - and frightening - achievement is white Americans' renewed sense of racial consciousness...He has wielded pervasive fear about demographic change into immense, cathartic, political capital in support of Trump and his crusade against political correctness, foreigners and other threats to the historic American social hierarchy."

    What could Guest possibly mean by "historical American social hierarchy" above?

    Clearly, Guest is referring to nothing other than white supremacy, a movement which unquestionably owes a great debt of gratitude to Stephen Bannon during his brief tenure in the White House - as well as to the president whom he was working for.

    Very arguably, Trump does not need Stephen Bannon any more in order to continue to move America's immigration system back toward the white supremacist regime that was in force during a large part of the last century, right up until the 1965 immigration reform law that Trump and his administration are now working so hard to undermine or overthrow.

    Trump can now get along quite well without Stephen Bannon.

    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 diverse parts of the world obtain work visas and green cards, without regard to ancestry, ethnic background or religion, in the true spirit of America.

    Roger's email address is

    Updated 08-20-2017 at 03:34 PM by ImmigrationLawBlogs

  5. BIA and Reprehensible Determinations

    In Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017), the BIA has ruled that the Oregon crime of burglary of a dwelling is a crime involving moral turpitude (CIMT) even though a defendant can be convicted of burglary under the Oregon statute for entering or remaining in an unoccupied home. The Board's analysis is somewhat confounding, ultimately favoring a categorical conclusion that is clearly to the disadvantage of those in the respondent's position.

    (In one fell swoop, the BIA rejected the respondent's request for withholding and deferral of removal under the Convention Against Torture (CAT) on the basis that the respondent failed to identify an acceptable particular social group as the reason for the threat to his life or freedom and fear of torture, ruling that, "he asserted that he would be targeted by criminals because he would be recognized as someone who has lived in the United States for a long period of time based on his clothing and accent. However, this proposed group lacks particularity, because it is amorphous and lacks definable boundaries. As described, the proposed group could include persons of any age, sex, or background." Id. at 86.)

    There are two central issues presented: Does the Oregon statute in question and, if divisible, the crime of which the respondent was convicted under the Oregon statute, amount to a generic burglary? Assuming it amounts to a burglary, is the crime of which the respondent was convicted a CIMT, involving reprehensible conduct and some degree of scienter?

    A few comments in response to the precedential aspects of this decision are warranted.

    A conviction of the crime of burglary does not make removal inevitable, not only because there may be post-conviction remedies available, but because the underlying offense is not necessarily a crime involving moral turpitude or an aggravated felony conviction.

    As we know, burglary convictions must be analyzed according to the state law under which the crime is defined. The elements of the offense described under state law must match the elements contained in the generic definition of burglary, i.e., unlawful entry into or remaining in a building or structure with the intent to commit a crime. Taylor v. U.S., 495 U.S. 575 (1990).

    The respondent argued that the statute was overbroad. Although the respondent asserted that “a violation of the statute does not necessarily involve reprehensible conduct or a culpable mental state since it does not require that a defendant unlawfully enter a dwelling or intend to commit a crime involving moral turpitude at the time he or she enters the building,” id. at 83, the BIA rejected the respondent's arguments.

    The BIA concluded instead that the statute was divisible “with respect to whether a first degree burglary offense involved entering or remaining unlawfully in a dwelling, as opposed to a building other than a dwelling.” Id. at 84-85. Cf. Mathis v. United States, 136 S. Ct. 2243,2249 (2016) (deeming a statute to be divisible if “it list[s] elements in the alternative, and thereby define[s] multiple crimes”)

    Under section 164.205(2), the term “dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. However, the BIA ruled that the statute was not divisible as to whether the building was occupied or not, cutting of any examination of the record with respect to that aspect of the crime.

    The records in the instant case contained no equivocation regarding the nature of the respondent's conviction. In fact, once the statute in the instant case was treated as divisible as to “entering or remaining unlawfully,” the record clearly identified the crime of which the respondent was convicted. As the BIA stated expressly, "the judgment and plea agreement for the respondent’s conviction show that he pleaded to “Burglary I” as charged in Count 2 of the charging document, which alleged that the offense occurred 'in an occupied dwelling.'” Consequently, the BIA affirmed the IJ's conclusion that, "according to the respondent’s record of conviction, he was convicted under the prong of section 164.225 that requires entering or remaining unlawfully in a “dwelling” with the intent to commit a crime." Id. at 86.

    But that begs the question.

    Today's decision in Matter of J-G-D-F-, expands on the BIA’s prior precedent in Matter of Louissaint, 24 I&N Dec. 754, 756 (BIA 2009), and distorts the longstanding BIA standard requiring that crimes involving moral turpitude must contain “two essential elements: reprehensible conduct and a culpable mental state,” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016). Prior to Louissant, the BIA honored the reasonable limitation that a crime was to be considered a CIMT only if the crime accompanying the unlawful entry was itself turpitudinous.

    In Louissaint, the BIA held that the “conscious and overt act of unlawfully entering or remaining in an occupied dwelling with the intent to commit a crime is inherently ‘reprehensible conduct’ committed ‘with some form of scienter.’” Matter of F-G-D-F-, supra. at 87 (quoting Matter of Louissaint, 24 I&N Dec. at 758 (citation omitted)). The rationale underlying this conclusion was the fact that the building was occupied and the victim’s presence involved an expectation of privacy and security. By drawing the conclusion that every unlawful entry of a dwelling, whether occupied or not at the time of the offense, amounts to "reprehensible conduct" the BIA evades prior caselaw which had focused on the specific crime that was intended. Cf. Matter of M-, 2 I&N Dec. 721 (BIA, A.G. 1946).

    c. 2017 Lory D. Rosenberg,

    Updated 08-18-2017 at 06:07 PM by Lrosenberg

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