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  1. 9th Circuit to Review Executive Order Injunction En Banc

    by , 02-13-2017 at 06:24 AM (Matthew Kolken on Deportation And Removal)
    Via the order:

    A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017,should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words.

    I'll keep you posted as new information becomes available.
  2. The Constitution Free Zone

    by , 02-13-2017 at 05:53 AM (Matthew Kolken on Deportation And Removal)

    I've written about this before, but it remains very much applicable given recent events. The majority of people living in the United States live within 100 miles of a border, which is an area that has been dubbed the Constitution Free Zone. The zone is a place where Customs and Border Protection (CBP) claims to maintain "extra-Constitutional" powers to stop individuals they deem to be in violation of U.S. immigration law. The Constitution Free Zone impacts approximately two-thirds of the entire population of the United States, citizen and immigrant alike, which is a population into the hundreds of millions.

    If you are stopped by Border Patrol, it is imperative that you know your rights.

    Via the ACLU:

    The Problem:

    • The Fourth Amendment of the U.S. Constitution protects Americans from random and arbitrary stops and searches.
    • According to the government, however, these basic constitutional principles do not apply fully at our borders. For example, at border crossings (also called "ports of entry"), federal authorities do not need a warrant or even suspicion of wrongdoing to justify conducting what courts have called a "routine search," such as searching luggage or a vehicle.
    • Even in places far removed from the border, deep into the interior of the country, immigration officials enjoy broad—though not limitless—powers. Specifically, federal regulations give U.S. Customs and Border Protection (CBP) authority to operate within 100 miles of any U.S. "external boundary."
    • In this 100-mile zone, Border Patrol agents have certain extra-Constitutional powers. For instance, Border Patrol can operate immigration checkpoints.
    • Border Patrol, nevertheless, cannot pull anyone over without "reasonable suspicion" of an immigration violation or crime (reasonable suspicion is more than just a "hunch"). Similarly, Border Patrol cannot search vehicles in the 100-mile zone without a warrant or "probable cause" (a reasonable belief, based on the circumstances, that an immigration violation or crime has likely occurred).
    • In practice, Border Patrol agents routinely ignore or misunderstand the limits of their legal authority in the course of individual stops, resulting in violations of the constitutional rights of innocent people. These problems are compounded by inadequate training for Border Patrol agents, a lack of oversight by CBP and the U.S. Department of Homeland Security, and the consistent failure of CBP to hold agents accountable for abuse. Thus, although the 100-mile border zone is not literally "Constitution free," the U.S. government frequently acts like it is.

    Click here to read the ACLU's Factsheet.
  3. Trump's Ban Against Entry From Seven Muslim Countries Is Only The First Step Toward Total White Nationalist Control Over Immigration. Roger Algase

    Update, February 13, 2:10 pm:

    For another view similar to the one I have outlined below to the effect that Trump's Muslim ban and stepped up deportation raids could just be the beginning of a much wider program of limiting immigration from non-white areas of the world (let's not kid ourselves - Trump is not likely to be interested in cutting off immigration from places such as Russia, Slovenia and Western Europe). see Greg Sargent writing in the Washington Post on February 13:

    Trump's reign of fear may soon get a whole lot worse. Here's what to look for.

    (I don't have a link - please use Google to access.)

    My original comment follows:

    In its February 9 order denying the Justice Department's appeal from a federal District Court's order temporarily blocking Donald Trump's executive order barring entry to the US by citizens of seven Muslim countries and by refugees from all over the world, the 9th Circuit Court of Appeals did more than decide that citizens of the banned countries, and refugees from everywhere, who had been granted or were eligible for legal visas could continue to come to the United States.

    The Court also upheld the principles of democracy and separation of powers over America's immigration system, and, at least for the time being, blocked America's disturbing march toward one-man rule over all aspects of our government and society that has been in evidence since our change of administration on January 20, 2017.

    But first, let us take up a question which has caused a great deal of comment, namely whether Trump's January 27 order barring almost 200 million citizens of seven overwhelmingly Muslim countries in the Middle East and Africa in the purported interests of "National Security" is a "Muslim Ban" or not.

    At the outset, playing around with words in order to make them mean anything one wants to is a very old intellectual game which has been around ever since Socrates spoke and Plato wrote about the absurdities of the Sophists, whose spirit is alive and well today in the arguments of those who would like to pretend that Trump's Muslim Ban is not really a Muslim Ban. Let's look at those arguments.

    First, it is claimed that Trump's order is not really directed against Muslims oer se, but only against citizens of certain named Muslim countries amounting to "only" an estimated 15 percent of the total estimated 1.6 billion Muslims in the world.

    If numbers or percentages of targeted people belonging to a certain ethnic or religious group are the test of whether that group as a whole is being discriminated against, than one could just as easily argue that a hypothetical ban on immigration to the US by citizens of Israel would not really be aimed against Jews, since more of the world's Jews live outside Israel than in Israel (according to the Pew Research Center - see Google) and Jewish citizens of countries other than Israel would not be affected by the ban.

    One has to doubt whether such an argument would be very persuasive among people who are not already committed anti-Semites.

    Even more absurdly, one could argue that President Franklin Roosevelt's infamous WWII Japanese-American internment order was not really aimed against people of Japanese ancestry specifically, because it affected only people of Japanese ancestry living on the West Coast, not in other parts of the United States.

    One has to wonder how long any professor of American history who maintained such a view would remain in his or her job.

    Most absurdly of all, one could even argue that the notorious late 19th century Chinese exclusion laws were not really directed against Chinese as an ethnic group because the laws did not apply to all citizens of China. Under those laws, only Chinese "laborers" were banned from entering the United States, not Chinese "merchants".

    Another variation of this argument that the Sophists would no doubt have been proud of was that Trump's ban against the seven countries citizens was not only directed against Muslims, because, if one looks hard enough, one might be able to find a few Christians or Jews living in those countries.

    To be sure, this claim may have some "merit" - Wikipedia states, for example, that there are currently 3,000 Christians and 50 Jews in Yemen - together amounting to one hundredth of one per cent of the total population!

    One can only imagine Donald Trump reminding his top adviser Stephen Bannon, who has claimed that the West (i.e. Europe and America) is in a "War of Civilizations" against the Muslim world, how important it is to make sure that this tiny number of Christians and Jews are also kept out of the United States, along with the 99.99 percent of the population of Yemen who are Muslims.

    Admittedly, Yemen may be a bit out of the way geographically. A major regional power on the banned list such as Iran is more religiously diverse. "Only" 99.4 percent of Iranians are Muslims, again according to Wikipedia, rather than 99.99 percent, as in Yemen.

    There is also a more sophisticated argument (no pun intended, of course) which has been put forth in some quarters to the effect that the seven Muslim countries affected by Trump's ban were previously identified by Congress and President Obama as countries which were having problems with or affected by terrorist organizations. See INA Section 217(a)(12)

    But this argument overlooks the fact that this statute was enacted only for the limited purpose of requiring citizens of visa waiver countries who had visited the named countries to apply for visas before entering the US.

    Nothing in that law or in Obama's presidential order relating to that law contemplated the drastic measure of banning almost 200 million people, more than 99 percent of whom just happen to be Muslims, from entering the United States without any individual showing that admitting any one of them would be detrimental to America's national interest.

    True enough, the 9th Circuit, in its February 9 order, did not make a specific finding that Trump's January 27 order was directed against Muslims on the basis of their religion. But it did state that there was a great deal of evidence that this was in fact the intention behind the order, and it left that question open for further fact finding.

    Perhaps a stronger argument than any of the above in favor of the proposition that Trump's January 27 order was not directed specifically against Muslims might be the fact that the order also bans refugees from every part of the world, at least "temporarily" (most likely for as long as Trump is president, that is, as is also undoubtedly the case with the "temporary" ban from the seven Muslim Countries - no one who has been listening to Trump's statements about Muslims and refugees both can be naive enough to think that these bans would not be extended by future executive orders if the courts ever allow them to go back into effect).

    The January 27 order also very clearly contemplates adding other countries to the banned list as time goes on. Not all of these might necessarily be Muslim countries.

    These provisions are consistent with a larger White Nationalist agenda to close off immigration from many, or even most countries of the world outside of Europe. Clearly this broader agenda is not limited to people from Muslim countries.

    This is also shown by a bill that has just been introduced by Trump's allies in Congress to make drastic cuts in family based green cards world wide coming on top of the stepped-up deportation raids and roundups which are creating fear and terror in Latino and immigrant communities across America (see my previous comment dated February 12). See also:

    But the fact that banning immigrants from predominantly Muslim countries may very arguably be only the first step in a plan to cut off, or vastly reduce, most or all immigration from outside Europe, does not mean that Muslims are any less the primary targets of Trump's January 27 order.

    In Germany from 1933 to 1945, persecution of allegedly racially inferior "Untermenschen" began with the Jews. It did not end there.

    While this does not imply that Donald Trump or his White Nationalist followers support mass murder or genocide in any way - they clearly do not - the parallel between singling out Jews as primary targets of persecution in Germany then and doing the same in America to Muslim immigrants now cannot be overlooked.

    I now turn to the main issue involved in the 9th Circuit's decision: do the courts, as one of the three co-equal branches of the government under our Constitution, have the power to look behind a presidential finding under INA Section 212(f) that entry to the US by any designated immigrants or classes of immigrants would be detrimental to the national interest?

    On this question, the argument of Trump's Justice Department reminds one of the famous dictum in George Orwell's novel Animal Farm:

    "All animals are equal, but some animals are more equal than others."

    As will be shown in my forthcoming comment, this is the same dictum that Donald Trump is applying to the three ostensibly co-equal branches of the US government.

    For the latest formulation of Trump's claim to have virtually despotic control over entry to the US by non-US citizens, as articulated by his top aide Stephen Miller, despite the 9th Circuit's resounding rejection of this contention, see:

    And for a view that Trump's battle for supremacy over the courts on immigration is part of a larger drive for absolute power, see the following article by former Labor Secretary Robert Reich:

    My forthcoming comment will look in detail at the two headed Hydra of the DOJ's argument that the courts should in effect suspend America's democracy and cede absolute power to the president over which non-US citizens may and may not enter the United States, namely INA Section 212(f) and the "Plenary Power" doctrine.

    It will examine in detail how the 9th Circuit, in its landmark February 9 decision, has dealt with this double-headed threat to the survival of America's immigration system as we have known it for the past half century, and to our democracy itself.

    First, in order to understand the significance of both the plenary power over immigration doctrine and of INA Section 212(f), and why they should both be looked at as extraordinary powers, to be used sparingly if at all by a president acting on his or her own, and not as broad power to rewrite America's entire immigration laws de novo, we need to look at the origin and circumstances of these two provisions of law.

    In this light, it will become obvious that both of these provisions were enacted to be used as an instrument of persecution against specific classes of immigrants who were unpopular at the time for racial or ideological reasons.

    The plenary power over immigration doctrine, which was a direct outgrowth of the 1880's and 1890's Chinese exclusion laws, was developed for the express purpose of making it easier for the federal government to keep Chinese immigrants from entering the US.

    INA Section 212(f) was enacted in 1952, at the beginning of the Cold War and the McCarthy era of persecution of Americans and foreign citizens alike who were thought to have "left wing" or "pro-Soviet" views. The purpose of this statute was to make it easier to impose an ideological test fo foreign citizens seeking to enter the US.

    In both cases, the intention was to eliminate the courts, and the Constitution, from the equation. Whether it is really as easy as that to make the courts, and America's constitution, disappear whenever the rights of an unpopular racial, ideological or, in the present case, religious group are at issue is a question that was at the heart of the 9th Circuit's decision in blocking Trump's Muslim ban order (which, yes, was exactly that, as I have shown above).

    This decision will be discussed in detail in my forthcoming comment.

    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 to obtain work visas and green cards.

    Roger's practice is concentrated in visas for H-1B specialty occupations, O-1 extraordinary ability, and J-1 training: and green cards through labor certification and opposite sex or same ssx marriage. His email address is

    Updated 04-08-2017 at 07:53 PM by ImmigrationLawBlogs

  4. Who are the "Criminals" and "Terrorists" Being Targeted by Trump's Deportation Raids and Attempt to Ban Entry From Muslim Countries? Roger Algase

    Remember just after the election, when Donald Trump announced that he was going to prioritize unauthorized immigrants who were also "criminal aliens" for deportation? At the time, the announcment was welcomed by some immigration advocates and experts as an indication that Trump might continue some version of the Obama administration's purported goal of focusing on dangerous criminal immigrants for enforcement action.

    This, in the minds of some analysts, left open the hope that Trump might eventually agree to work out some kind of de facto legalization, or at least a place farther back in the deportation line, for unauthorized immigrants who do not have criminal records.

    But, right from the beginning, there was something about Trump's announcement that didn't quite fit in with this more "compassionate", "humanitarian" or at least realistic (since even Donald Trump doesn't have the resources to deport all of the 11 million people who are in this country without permission any time soon) policy.

    As I warned in an Immigration Daily comment at that time, it quickly became obvious that Trump might be more interested in promoting the facade of this more targeted policy than in focusing on the real criminals.

    As I wrote, there were plans afoot to play around with the definition of "criminal alien" to include, not only unauthorized immigrants who had actually been convicted of a crime, but those who had only been arrested or charged with a crime, even if not convicted.

    In addition, Trump's proposed definition, reportedly prepared by Kansas Secretary of State Kris Kobach, who has arguably found more creative (and less successful, based on numerous court decisions to date) ways to harass and persecute minority immigrants - and prevent minority US citizens from voting - through attempted legislative means than anyone else in America, would have identified even immigrants who had never been charged with any crime at all, but who might have engaged in conduct which could have resulted in being charged with a crime in theory, as "criminal" aliens for deportation priority purposes.

    As I also wrote at the time, this broad definition of "criminal alien" would overturn almost 2,000 years of Western legal principles to the effect that a person charged with crime is innocent until proven guilty.

    However, it would have accomplished the goal of making it easier to engage in mass deportation of millions of Latino, Black, Asian and Middle Eastern immigrants by inflating the definition of "criminal alien" to including many people who are not in fact criminals under our law.

    However, that was then, back in November or December, 2016. Now, we are seeing the reality of the Trump administration's definition of "criminal alien" - anyone without legal papers whom ICE can catch and lock up in house to house, door to door raids, traffic stops, or just random documents searches in minority areas throughout America.

    See the Huffington Post's February 10 report:

    Undocumented immigrants Arrested Nationwide, Stoking Fears of Trump's 'Deportation Force'

    See also: The Hiil: (February 10):

    Panic setting in among Hispanics over deportations:

    As shown by these two reports, the people being picks up and summarily deported in these ICE raids and roundups are not the powerful billionaires, generals and politicians who have been appointed to Trump's cabinet or as part of his inner circle of advisers.

    They are the least powerful, most vulnerable people in our society, such as Arizona resident Garcia de Rayos, who had been convicted of a low-level, non-violent crime, and who was suddenly deported during a routine annual ICE inspection.

    The same is true of the hundreds of ordinary people with legal visas, and even, initially, green cards, who had come to the United States to study, to do research, as refugees, or simply to reunite with their families, who were detained and handcuffed at airports across America without access to attorneys, and, in many cases, were sent back to their home countries before the federal courts stepped in to protect their basic human rights and the Constitutional rights of American citizens who had invited them to come to America.

    As was widely reported in the media, one of the victims of Trump's ban on immigration from seven Muslim countries was a baby from Iran who had been brought to the United States for urgently needed, lifesaving, medical treatment.

    Another person with proper legal documents who was initially denied entry (but who, like the Iranian baby, was eventually admitted) was an Iraqi translator who had spent years risking his life to support American soldiers in his country.

    During the litigation in the 9th Circuit, which put at least a temporary stop to this madness and repression which, to day the least, had temporarily blurred the distinction between America and North Korea, Donald Trump's Justice Department lawyers were repeatedly asked to provide evidence that any of the people who had been blocked from entering the US or had been summarily sent back to their countries, or the thousands of others from the seven countries who had been granted US visas, represented a danger of any kind to the United States.

    No such evidence was offered.

    The reality is that the danger of terrorist attacks against the United States by people from the seven countries affected by Trump's immigration ban, while not entirely non-existent, has been greatly exaggerated.

    This raises a fundamental question at the heart of Trump's Muslim countries and worldwide refugee ban: what is the real purpose of the ban?

    Is it to make America safer? Or is to destroy anyone or anything that stands in the way of Trump's drive to absolute power, not only over America's immigration system, but over America itself?

    Judging by the president's repeated and intense, if not actually obsessive, attacks on the courts for blocking his ban, while in effect, accusing the US judiciary, which is the only branch of the government left that still operates independently of the will of America's new supreme leader, of supporting terrorists, Trump's real goal is becoming even clearer than before.

    All indications are that this goal is to establish one-man rule in America. This is, very arguably, the ultimate purpose of Donald Trump's stepped up roundups and raids which are now spreading fear and terror in immigrant communities throughout the United States.

    This was also, very arguably, the fundamental reason for his Muslim immigrant and refugee ban which would have disrupted the lives of hundreds, if not thousands, of innocent people around the world.

    Roger Algase
    Attorney at Law

    To be continued.

    Roger Algase
    Attorney at Law

    Updated 02-13-2017 at 11:07 AM by ImmigrationLawBlogs

  5. What Two Great Poets From "Banned" Muslim Countries Might Say About Trump's Executive Order If They Were Alive Today. Roger Algase

    Poets can tell us profound truths in a way that the greatest scholars - even legal specialists! - cannot equal.

    Two great poets of the Muslim world, one from 10th century Iraq and the other from 14th century Persia, wrote lines which might well describe Donald Trump and his January 27 Muslim ban order which has now been put on hold by the 9th Circuit Court of Appeals;

    I will begin with the famous 10th Century Iraqi poet, Al-Mutanabbi (915-965), who wrote as follows - I apologize for any mistakes in transliteration, as i am not an Arabic language scholar):

    "Wa taadumu fi 'ain assaghir assagharuha,

    Wa tasgharu fi 'ain al azim al azaimu."

    ("Those who are small think that their small deeds are great,

    And those who are great think that their great deeds are small.")

    Isn't the first line an apt description of Donald Trump and his January 27 executive order, in which one lone man, a firm believer that everything he does is great, if not the greatest ever, acting on his own, claimed the right to bar almost 200 million people from coming to the United States just on the basis of his own say-so?

    And what about the president's even smaller tweets, each of 140 characters or less, in which he maligns and abuses respected federal district and circuit judges as being "a so-called judge" and, "disgraceful" respectively, for daring to disagree with the legality of Trump's "great" executive order

    And, very arguably, the second line is a good description of the otherwise almost unknown, or at least inconspicuous, judges of the federal district court and of the 9th Circuit panel who, modestly but firmly, and without bombast, put a stop to Trump's abuse of power in issuing his now thoroughly discredited ban order, one which he thought was so great.

    As the Circuit Court's opinion shows, the president's order was small on legal reasoning and even smaller on the facts. (See my February 9 Immigration Daily comment, and my more detailed analysis of the 9th Circuit decision to appear in a forthcoming Immigration Daily comment.)

    Now let us turn to the one of the greatest of all Persian poets, Hafez (1325/26 - 1389/90) who is not an unknown name in the United States and whose Sufi poems, in translation, can be found in any Barnes & Noble store.

    In one of his most famous poems, using a theme to be found in both the Bible and the Koran, he writes (again, I apologize for any mistakes in transliteration - I am not conversant in Farsi either):

    Yusofe gomgashte baz ayad be kanan - qam machor

    Kolbeye ahzan shavad roozi golestan - qam machor

    ("Joseph, who was lost, will return to Canaan - do not grieve.

    The house of sorrows will turn into a garden - do not grieve.")

    This could be taken as a metaphor for Donald Trump's America, which is on the path of losing its way to the values of equality, tolerance and democracy on which our nation was founded and which has made America the greatest nation on earth.

    But, the poet tells us (speaking from seven centuries ago - one century for each of Trump's banned Muslim countries) we should not grieve. America is stronger than any one chief executive, and this country will one day return to its real values, in keeping with the words of the great ancient Greek poet, Hesiod, writing (according to most estimates) around 2,700 years ago:

    "Hoi de dikas xeinousi kai endemoisi didousin

    Itheias kai me ti parekbainousi dikaiou,

    Toisi tethele polis, laoi d'antheousin en aute.

    ("Those who give justice to foreigners and fellow citizens and do not turn away from justice at all, their city blooms and the people in it flower.")

    Roger Algase is a New York immigration lawyer and a graduate of Phillips Academy, Andover, Harvard College and Harvard Law School. He has been representing mainly skilled and professional immigrants from diverse parts of the world for more than 35 years.

    At Phillips Andover and Harvard, Roger studied and gained some knowledge of several Western European languages. He has also been exposed to the basics of a number of non-European languages, without becoming proficient in any of them.

    Roger's email address is

    Updated 02-13-2017 at 02:23 PM by ImmigrationLawBlogs

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