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  1. President's Bad Faith and Claim of Unlimited Power in Defending Muslim Ban Pose an Existential Threat to America's Democracy. Roger Algase

    The following comment has been revised as of May 11 at 9:27 pm.

    This comment will go into detail about the dangers to America's democracy posed by the claim of unlimited presidential power which Donald Trump's lawyers have been asserting before the US 4th Circuit Court of Appeals, and other federal courts, in order to try to justify his order banning at least 100 million people from entering the US without any showing of wrongdoing, merely because they happen to be citizens of six almost 100 per cent Muslim countries.

    First, let us take a close look at the president's claim, argued at length before the court in the 4th Circuit Muslim ban case, to the effect that even if a presidential action is in bad faith, the courts have no power to look into that fact or to act on it.

    Admittedly, when the president issued his original and revised Muslim ban orders, there was a national security pretext to be sure.

    However, both the history of these orders and the fact that there has been no evidence of any increased danger to America or risk of attack arising from the fact that the courts have blocked these orders show beyond any possible doubt that national security was not the main purpose of these orders, but that an unconstitutional assault on religious freedom and equal protection of the law for America's Muslim minority was.

    Both the history of these two orders, originating in the president's December 2015 call for a world-wide ban on entry to the US by Muslims, and the obvious bad faith behind these two orders are described in detail in an amicus brief submitted in the 4th Circuit litigation by a group of constitutional law scholars, led by a Joshua Matz, a distinguished former Harvard Law Review editor and law clerk to Justice Anthony Kennedy, and co-author with Professor Lawrence Tribe of a book called The Roberts Court and Constitution. See:

    For the full text of the amicus brief, follow the link by clicking on the word "desribed" in Matz' following article on the 4th Circuit case in The Guardian May 9th issue:

    and then follow the link to the full brief in the summary of the brief that will appear on the page the comes up after clicking on the above word "described".

    As Matz writes in the above article:

    "To start, supreme court precedent
    requires courts to assess presidential motives here. As I described in a brief on behalf of legal scholars, under the establishment clause, official acts based in animus toward any particular religion are forbidden."

    Matz continues:

    "As professor David Hemel has explained, under relevant immigration cases, 'a decision to exclude aliens from the country can be struck down on a convincing showing of bad faith.' Several judges, including Pamela Harris and James Wynn Jr., properly emphasized that these rules compel a judicial analysis of Trump's purpose."

    Then, after stating that all of Trump's anti-Muslim remarks, not just the ones he may have made as president, are relevant to this policy, Matz writes:

    "Any other conclusion would be destructive of our constitutional culture. The notion that the president can speak without any sense of legal responsibility for his statements is chilling."

    And, in answer to the claim of unlimited power over immigration which the president is now making before the courts, Matz writes:

    "It's true, of course, that the president typically enjoys a judicial presumption of good faith and regularity. But there surely comes a point where reliance on this rule amounts to judicial abdication - and Trump's continuing bad faith and irregularity suggest we have crossed that Rubicon. Even if we haven't, the nature of presumptions is that they can be rebutted, and the evidence of Trump's bad faith toward American Muslims is overwhelming."

    Anyone who has any doubts about the "animus" (to put it euphemistically) toward Muslims and their religion which obviously motivated Donald Trump's Muslim ban orders need only read his venom-saturated, poisonous December 7, 2015 speech calling for a world wide ban on entry by Muslims to the US which I quoted in full in my previous comment on this subject, and which was since followed up by a long series of hostile comments and actions toward Muslims too numerous to mention here.

    Matz concludes:

    "Judges may not invalidate Trump's travel ban merely because they disagree with it, but they assuredly can strike it down for violating fundamental rights. Our history offers painful lessons about the potential for tragedy when courts fail to exercise this vital responsibility."

    And finally, Matz warns:

    "But if the judiciary blinds itself, freeing Trump of all responsibility for his words, policies like this may define our future"

    But the danger to our democracy that was presented by Trump's attempt by means of the Muslim ban orders to institute unfettered, one-man control over a key part of this country's immigration policy, without being subject to any control by the courts or the constitution, is already now already apparent.

    The fundamental issue presented by the president's Muslim ban orders, as will as his other unilateral actions against immigrants since become president is: How long will America remain a democracy in what Attorney General Jeff Sessions recently called the "Donald Trump era" of immigration?

    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 receive work visas and green cards without regard to their ethnicity, national origin, or religion. Roger's email address is

    To be continued.

    Updated 05-12-2017 at 07:52 AM by ImmigrationLawBlogs


    by , 05-10-2017 at 01:56 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    The Department of State has just issued the June 2017 Visa Bulletin. This is the eight Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.

    June 2017 Visa Bulletin

    Final Action Dates

    Applications with these dates may be approved for their Green Card (Permanent Residency card).

    All Charge-
    Areas Except
    Those Listed



    MU Law Analysis

    All Other: The EB-2 has been current for many years. The EB-3 progression continues, moving an additional one month. Consular processs EB-3 are effectively current.

    China: The DOS has instituted a retrogression for China EB-1. The continued high level of demand for EB-1 numbers for USCIS adjustment of status applicants has required the establishment of a date for June. It is expected that this EB-1 retrogression will last until October 2017.

    The China EB-2 date again moved up, but only a few weeks. The DOS notes that there has been an extremely large increase in EB-3s during the past month. The China EB-3 date is being held for the month of June. Continued heavy demand for numbers will require a retrogression of China EB-3 no later than August.

    India: As with China, India EB-1 now is retrogressed. It is expected that this EB-1 retrogression will last until October 2017.

    EB-2 India moved up about two weeks. EB-3 India actually moved up almost two months. It is our expectation that these two categories will move very slowly in the foreseeable future.

    Mexico: Mirrors All Other in all aspects.

    Philippines: EB-3 moved ahead by yet another four more months. The Philippine EB-3 number essentially cleaned out all of the 2010, 2011, 2012, and half of 2013 EB-3 visas in about 6 months. This is even more positive than we expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").

    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. Texas bans sanctuary cities but Trump may be a step ahead. By Nolan Rappaport

    © Getty

    On Sunday, Texas Governor Greg Abbott signed into law a bill banning sanctuary cities in Texas, Senate Bill No. 4 (SB 4). According to Abbot, sanctuary city policies have deadly consequences and will not be tolerated in Texas.

    He referred to Kate Steinle, who was allegedly shot dead by an undocumented alien while she was walking on a busy pier in San Francisco with her father. The alien was a repeat felon who had been deported five times. A San Francisco police department had released him from custody without notice to ICE despite the fact that ICE had given the department an immigration detainer requesting such notice. San Francisco is a sanctuary city.

    Abbott supports legal immigration, but not harboring aliens who have committed dangerous crimes.

    Texas officials who foster sanctuary policies which might be considered harboring would be wise to reconsider that practice even if SB 4 is never implemented. Harboring is a federal criminal offense, which, when it results in a death, is punishable “by death or imprisoned for any term of years or for life.”

    What does the Texas law provide?

    Read more at ---

    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. 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 05-14-2017 at 04:02 PM by ImmigrationLawBlogs

  4. Exposing the Grandma Menace

    On April 26, the Department of Homeland Security launched its new Victims of Immigration Crime Engagement (VOICE) office. According to DHS, VOICE will “assist victims of crimes committed by criminal aliens.” DHS Secretary John Kelly said in a statement, “All crime is terrible, but these victims are unique—and too often ignored. They are casualties of crimes that should never have taken place—because the people who victimized them often times should not have been in the country in the first place.” I suppose the same might be said of crimes committed by children born of unplanned pregnancies, but I digress.
    Don't mess with these ladies, especially if they haven't had their nap.

    The fact is, most credible reports show that immigrants commit crimes at a lower rate than U.S. citizens. But never mind that. Today, I am concerned with another group whose below-average crime rate masks its otherwise sinister nature. You guessed it, I'm talking about America's grandmothers.

    To shed light on this menace, I've decided to create a new website called VOGUE - Victims Of Grandmothers' Unscrupulous Ethics. The website will track crimes committed by mommoms, babas, memoms, geemas, and savtas throughout our great country. And I'm not just talking about the Little Old Lady from Pasadena, though her reckless driving certainly terrified everyone on Colorado Boulevard. Rather, I want the public to know that America's bubbies are a real threat to our society. So in the spirit of disproving statistics with anecdotes, I present to you the Top 5 nana-related crimes of recent memory. Be afraid. Be very afraid:

    (1) In 2010, a 64-year old Long Island woman was arrested for stealing boxes of jello, replacing the contents with sand and salt, and then returning the boxes for a full refund (of $1.40 each!). According to authorities, Christine Clement disposed of the evidence by cooking up and eating the contents of the boxes she had emptied. Ms. Clement's husband of 40 years served as her get-away driver.

    (2) Griselda Blanco was a drug lord (drug lady?) from Colombia who relocated to Miami where she dominated the violent cocaine-trafficking scene in the 1970s and 1980s. She was supposedly responsible for over 200 murders, including the murder of at least one of her husbands. Ms. Blanco was finally deported to Colombia where she was assassinated at a butcher shop in 2012. Catherine Zeta-Jones is slated to play her in an upcoming movie called The Godmother (fittingly, Ms. Blanco's youngest son is named Michael Corleone Blanco).

    (3) Velma ****ield, also known as "Death Row Granny," used arsenic as her weapon of choice. She confessed to killing four people, including her mother and a boyfriend. It seems likely she also killed at least one of her two husbands. In 1984, she became the first woman executed by lethal injection and the first woman in the United States executed since 1962.

    (4) Another killer who preferred poison was Nannie Doss, known as the "Giggling Granny." All together, she killed four husbands, two children, her two sisters, her mother, a grandson, and a mother-in-law. The first murders took place in the late 1920's and the last occurred in 1953, when she killed her fifth husband by poisoning his sweet-potato pie (given my own feelings about sweet potatos, I am unlikely to die this way).

    (5) Career criminal Doris Payne has been a jewel thief for more than six decades. Her most famous theft involved a $500,000.00, 10-carat diamond ring, which she stole from a jewelry store in Monte Carlo in the 1970's. More recently, in 2015, she allegedly stole another diamond ring valued at $33,000.00 from a store in North Carolina (at age 84!). Her modus operandi is to pretend to be a well-to-do person looking to buy jewelry. She has the clerk take out various pieces, and then somehow causes the clerk to lose track of a piece or two, which she carries away.

    So as you can see, America's grannies are a notorious bunch. Whether they're clandestinely replacing our jello with sand, murdering rival drug lords and annoying husbands, or walking away with large diamonds, they clearly represent a danger to us all. But hopefully, VOGUE will help. By shining a light on a few bad (Granny Smith) apples, we'll soon have you convinced that the whole barrel is spoiled. At least that's what they tell me at DHS.

    Originally posted on the Asylumist:
    Tags: asylum, dhs, voice Add / Edit Tags
  5. OCAHO Decides Who and What is Protected from Document Abuse

    By Bruce Buchanan, Sebelist Buchanan Law PLLC
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    The Office of Chief Administrative Hearing Officer (OCAHO) issued another decision on “document abuse”, which has been renamed “unfair documentary practices”, finding the employer did not commit document abuse against the Charging Party, Doris Rainwater. Rainwater v. Doctor’s Hospice of Georgia, Inc., 12 OCAHO no. 1300 (Apr. 2017).


    Ms. Rainwater was employed as a certified nursing assistant at Doctor’s Hospice for several years. At that time, she was a lawful permanent resident (LPR). In November 2013, Doctor’s Hospice conducted an annual review of its employees’ personnel files to ensure none of its employee documentation, such as certifications, had expired. In this review, the Administrator discovered Ms. Rainwater’s LPR card had expired. Thereafter, Ms. Rainwater was informed she was suspended until she could present a valid LPR card.

    Ms. Rainwater contacted the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) (now renamed Immigrant and Employee Rights Section (IER) of the Department of Justice), who informed her that Doctor’s Hospice’s action was discriminatory. OSC called Doctor’s Hospice and explained even if a LPR card expires, the individual’s LPR status has not ended. During the suspension, Ms. Rainwater told her supervisor, Ms. Charleston, that she had called the Department of Justice. Ms. Charleston reiterated she could not work with an expired LPR card. (It’s unclear whether this conversation occurred before or after OSC’s call to Doctor’s Hospice). Doctor’s Hospice’s Director of Nursing said she received a phone call from the Department of Justice, who said LPR cards never expire. Several days later, Ms. Rainwater was reinstated, but without back pay for the two weeks off.

    When Ms. Rainwater returned to work, she said most of the managers did not speak to her. One manager, Ms. West, allegedly stated the facility had the “best lawyer” and “nobody beat or play with my lawyers.” She also allegedly said “you should have talked to me about his prior to going to the Department of Justice to complain about these things.”

    On January 8, during an ice storm, a pipe burst at this facility causing a shutdown and the layoff of all employees. On February 27, the facility reopened but it was not fully occupied with patients; thus, two employees were not rehired - Ms. Rainwater and one other employee. Doctor’s Hospice asserted Ms. Rainwater was one of the two employees not rehired because of her poor work record and performance. Thereafter, Ms. Rainwater filed a charge with OSC alleging her failure to be rehired was retaliation and the original suspension was also unlawful.

    Suspension Claim

    OCAHO found Ms. Rainwater’s suspension claim failed because the statute only “prohibits an employer from discriminating with respect to hiring, recruitment, referral or discharge.” The statute does not cover certain employment actions, such as suspension, compensation, or shift assignments.

    However, Doctor’s Hospice’s actions in requesting an unexpired LPR card from Ms. Rainwater was determined to be an act of document abuse under 8 U.S.C. §1324b(a)(6). However, Ms. Rainwater is not a protected individual under that section because she was not a recent permanent resident. Ms. Rainwater had been a LPR for almost 10 years. To be covered, individuals must have not held LPR status for no longer than six months beyond becoming eligible to naturalize. Ms. Rainwater became eligible to naturalize approximately five years before the request for an unexpired LPR card.

    Failure to be Rehired Claim

    Concerning the failure to rehire Ms. Rainwater to work when the facility reopened, OCAHO found Ms. Rainwater’s evidence did not support her retaliation claim. Initially, OCAHO noted that even though she was not considered a protected individual for the document abuse claim, OCAHO retained jurisdiction over her retaliation claim. Specifically, Ms. Rainwater engaged in protected conduct when she contacted OSC about her suspension due to an expired LPR card. Furthermore, Doctor’s Hospice knew of the contact through Ms. Rainwater telling Doctor’s Hospice and a telephone call from OSC explaining that LPR cards do not expire.

    OCAHO concluded Ms. Rainwater failed to establish a causal link between her protected conduct and the failure to be rehired. Although the time period between the telephone call to OSC and the termination was less than three months, OCAHO found intervening events – the ice storm, closure of the facility, and subsequent reopening of the facility with less than full capacity - broke the claim of causality in the retaliation claim. OCAHO said these events caused the end of Ms. Rainwater’s employment, not retaliation. Furthermore, the fact that Doctor’s Hospice returned Ms. Rainwater to work in December after the phone call to OSC undercut her assertion of a causal link between contacting OSC and her failure to be rehired. Finally, OCAHO found Doctor’s Hospice comments about Ms. Rainwater’s contact with OSC were not sufficient to establish the causal link. Thus, OCAHO dismissed Ms. Rainwater’s retaliation claim.

    This decision is a firm reminder of who is covered and what is covered by Section 1324b cases. Often, employers are so focused on complying with the I-9 requirements, they inadvertently commit citizenship status discrimination under Section 1324b. One idea to combat this problem is to have an immigration compliance attorney conduct a training session on immigration compliance.

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