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  1. Donald Trump's Promises To His Anti-Immigration Followers Are Turning Into a Disaster for the Alt-Right. Roger Algase

    Update: February 10, 2017, 6:48 am

    The 9th Circuit US Court of Appeals, in a unanimous ruling by a 3-judge panel, has just dealt a crushing blow to Donald Trump's pretensions of being a king or emperor over immigration, by denying the administration's appeal seeking to vacate a district court order blocking key parts of Trump's January 27 ban on entry by refugees from all over the world and by immigrants and visitors from seven Muslim countries with a combined population of almost 200 million people.

    Trump's top immigration advisers, Sessions and Bannon, who longingly yearn for a return to the days of the Northern Europeans only immigration act of 1924, which gave Germany an annual US immigration quota of 50,000 and gave China, India and Japan a total of exactly 100 spots each (!) are going to be greatly disappointed, along with white supremacists such as Jared Taylor and many others on the white nationalist Alt-Right.

    Details of the 9th Circuit's order will appear in my next comment.

    My original comment appears below:

    If I were a member or supporter of the anti-immigrant, white nationalist, Alt-Right (which, for the record I am not) I would be thrilled at many of the statements that America's Tweeter-in-Chief has made about immigration since entering the White House. I would be delighted that Trump is using The Art Of The Tweet so "skillfully" and with such "great effect" to "warn" the American people about the "imminent danger" to our "national security" that we allgedly face, for example, by letting an Iranian baby who needs life-saving surgery, or an Iraqi translator who put his life on the line for many years in order to support American soldiers, into the United States.

    From an Alt-Right perspective, I would also be heartened by the fact that, unlike any of our presidents since the time of Calvin Coolidge in the 1920's, our new president seems to "understand", along with his top White House adviser, Steve Bannon, and his just confirmed attorney general, Jeff Sessions, how "dangerous" it is to our society and to America's "sovereignty" as a nation to let people into the United States from all over the world, in greater than our "historical" immigration numbers; people who are allegedly not part of our "culture" and our (European, "Judeo-Christian") tradition.

    If I were part of the Alt-Right, I would also marvel at the president's "wisdom" and "courage" in calling out "lowly" judges, such as someone on the federal district court in the state of Washington who "dares" to call himself a judge, and his even more "disgraceful" superiors on the 9th Circuit Court of Appeals who presume to challenge our president's "wisdom" and "power" to decide who can come into this country and who can't, and who don't seem to understand that America is one nation - with a "united" people - and that we only have one Leader.

    As someone else put it so "well" (from the Alt-Right standpoint) some 80 years ago in Germany:

    Ein Volk. Ein Reich. Ein Fuehrer.

    These judges, and many others like them who are standing in the way of Donald Trump's "superior" knowledge and judgment about what is best for America in immigration matters, certainly "need" to be taught an Alt-Right lesson or two.

    Above all, as an Alt-Right supporter (if I were one) I would be ecstatic over Trump's January 27 executive order. Of course, (Alt-Righters would avow), America needs to be "protected" from Muslim "influence", as Trump's order clearly seeks to accomplish.

    But Donald Trump's order doesn't stop there. By contemplating uniform screening procedures for all immigrants, from everywhere in the world (Section 3), and by requiring that every immigrant and visitor to the US must show that his or her admission to this country is in the "national interest" (Section 4 of the order) - one of the hardest standards of all to meet in the entire INA, the president is finally "cracking down" on immigration from parts of the world that are "incompatible" with America's "heritage" (as the Alt-Right understands that heritage) and is paving the way toward the "long needed" return to the time when immigrants from Europe were the clear majority in America and when they, or their US-born descendants, dominated every aspect of American society. What could possibly make Trump's Alt-Right supporters happier than that?

    So, from the Alt-Right point of view, Congratulations, Mr. President! You have really shown that your heart is in the "right place".

    But, Mr. Trump, there is one small problem for Alt-Right fans here - look at what has actually happened in the three weeks that you have been president:

    First, the chaos at the airports, the attempts to send home people whom even Alt-Righter's can't pin anything bad on, like the Iranian baby mentioned above, have created a huge groundswell of support among ordinary Americans for - Oh, No! You guessed it - MUSLIMS!

    These protests have been taking place throughout this country, as expressed in demonstrations at airports and in at least 20 lawsuits filed in federal courts trying to stop your order.

    At least least one of these lawsuits, in the 9th circuit, has been successful, and it might even lead to a Supreme Court decision striking down all of Trump's order's "good deeds".

    And now, all these people are now "pouring" into America, something that Trump promised he would stop as soon as he took office. Our president has now created so much popular support for Muslims and antagonism to the Alt Right that it might have been better (for Alt-Righters) if his executive order had never been issued!

    Mr. Trump, How Could You!

    To borrow one of our new president's own favorite words, his anti-Muslim executive order, as Alt-Righters would no doubt see things, has turned into a total - Disaster!

    Roger Algase
    Attorney at Law

    Updated 02-11-2017 at 01:50 AM by ImmigrationLawBlogs

  2. OCAHO States Good Faith Does Not Warrant 25% Mitigation

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    In another decision involving a small restaurant in Hamburg, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the restaurant’s penalty from $46,657 to $33,725 for four violations of failing to prepare and/or present I-9 forms and 67 violations for failing to properly complete I-9 forms. See U.S. v. 3679 Commerce Place, Inc. d/b/a Waterstone Grill, 12 OCAHO no.1296 (2017).

    Since Waterstone Grill admitted liability, the only issue before OCAHO was the amount of the penalties. Immigration and Customs Enforcement (ICE) used $935 as the baseline penalty per violation based on a violation rate of over 50%. In an unusual twist, ICE found a 25% mitigation was warranted based upon the restaurant’s good faith in preparing the I-9 Forms. Normally, the five statutory factors, including good faith, are worth the 5% mitigation or aggravation. ICE also mitigated by 5% each due to the restaurant’s small size and the 67 employees in Court II were determined to be eligible for employment. ICE aggravated by 5% for the seriousness of the violations.

    Waterstone Grill asserted it deserved mitigation for three of the four employees in Count I because they were authorized to work and several non-statutory factors, including general public policy of leniency toward small businesses, its cooperation with ICE during the investigation, including enrolling in E-Verify, and its inability to pay the $47,000 penalty.

    OCAHO found 25% mitigation for good faith was unwarranted, especially where ICE offered no explanation for the size of the mitigation. However, some mitigation, which was not defined, was warranted. Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty should be viewed in light of the company’s financial situation. Although OCAHO found an employer’s post-inspection remedial measures may support mitigation, it declined to find such here.

    OCAHO found ICE failed to prove the employees in Count I were unauthorized to work. OCAHO stated “it does not always follow that a factor found not to be aggravating (which is normally where the factor of unauthorized workers is found) must necessarily and automatically be mitigating.” However, in this case, OCAHO decided this was a mitigating factor.

    OCAHO determined the proposal penalty should be reduced to $475 each for a total penalty of $33,725. As the facts demonstrate, if Waterstone would have performed an internal I-9 audit before ICE arrived with the NOI, most of the I-9 violations could have been corrected and not subject to a penalty.
  3. 9th Circuit Rules No Right to Counsel if Subject to Expedited Removal

    by , 02-09-2017 at 08:47 AM (Matthew Kolken on Deportation And Removal)
    The Ninth Circuit Court of Appeals has ruled in United States v. Rufino Peralta-Sanchez that a noncitizen has no Constitutional right to a lawyer if they are properly subject to expedited removal. This may be ominous foreshadowing with respect to the pending litigation challenging President Trump's immigration executive orders.

    From the decision:

    The panel held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify himof the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4).


    A. 1. Expedited Removal

    Expedited removal proceedings under 8 U.S.C. § 1225 are limited to aliens arriving in the United States, “whether or not at a designated port of arrival”; and aliens “who ha[ve] not been admitted or paroled into the United States” and cannot show that they have been continuously present in the United States for two years “immediately prior to the date of determination of inadmissibility.” 8 U.S.C. § 1225(a)(1),(b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(ii).5 Section 1225 gives the Secretary of Homeland Security “sole and unreviewable discretion” to designate which, if any, aliens described in the latter category—those arriving in the United States who have not been admitted or paroled into the United States and have not been continuously present for the last two years—will be subject to expedited removal. 8 U.S.C.§ 1225(b)(1)(A)(iii)(I). By order, the Secretary of Homeland Security has determined to use the expedited removal procedure for those aliens (1) “who are physically present in the U.S. without having been admitted or paroled,” (2) who are found “within 100 air miles of the U.S. international land border,” and (3) who cannot establish that they have been physically present in the United States for the immediately preceding fourteen days. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11, 2004).

    If an immigration officer, after conducting an inspection,determines that such an alien does not possess valid entry documents, has presented fraudulent documents, or has made a false claim of U.S. citizenship, “the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution.” 8 U.S.C.§ 1225(b)(1)(A)(i); see also id. § 1182(a)(6)(C), (a)(7).When making a finding of inadmissibility, the officer must create a record of the facts and statements made by the alien,read the statement containing these facts to the alien, explain the charges against the alien, and give the alien a chance to respond to the charges in a sworn statement. 8 C.F.R.§ 235.3(b)(2)(i). In short, the alien is provided with notice of the charges against him or her and given an opportunity to respond. In contrast to the statutes governing formal removal proceedings under § 1229a or the removal of aggravated felons under § 1228, the statutes and regulations governing expedited removal proceedings do not provide that the alien may be represented by counsel.

    Except in a limited category of cases (not applicable here), an alien who is determined to be inadmissible via§ 1225 proceedings is not entitled to administrative or judicial appeal. The Attorney General, however, has discretion to grant withdrawal of the alien’s application for admission.8 U.S.C. § 1225(a)(4); see also id. § 1225(b)(1)(C) (noting that an alien who claims to be an LPR, a refugee, or an asylee may be entitled to appeal). If the Attorney General permits an alien to withdraw his application for admission, the alien must “depart immediately from the United States.” Id.§ 1225(a)(4).

    Click here for the decision.

    Updated 02-09-2017 at 10:10 AM by MKolken

  4. Exactly how much immigration authority does Trump have? Well.... By Nolan Rappaport

    © Getty

    President Donald Trump’s immigration executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” imposes a 90-day suspension on admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States.

    These countries were taken from a list compiled for section 217(a)(12) of the Immigration and Nationality Act (INA), which excludes aliens who have been present in a specified country from participating in the Visa Waiver Program.

    The order also requires the creation of a list of countries that refuse to provide information needed to determine that an individual seeking to enter the United States “is who the individual claims to be and is not a security or public-safety threat.”

    The countries on this list will be considered “for inclusion on a presidential proclamation that would prohibit the entry of foreign nationals … from countries that do not provide the” requested information “until compliance occurs.”

    President Trump bases these actions on his authority under the provisions of section 212(f) of the INA, the pertinent part of which reads as follows:

    Read more at --

    Posted 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 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 02-09-2017 at 08:15 PM by ImmigrationLawBlogs

  5. 9th Cir. Oral Argument Judges: INA 212(f) Does Not Make Trump Immigration Emperor. Trump Disagrees, and Suffers Huge Defeat. Roger Algase

    Update: February 9, 10:05 pm:

    On February 9, 2017, a unanimous 3-judge panel of the US Court of Appeals for the 9th Circuit ruled that Donald Trump does not have the same unlimited power to ban Muslim immigrants, and refugees from all over the world, from the United States that the emperor Tiberius had to expel the Jews from Rome 2,000 years ago, and that autocrats in all times and places have exercised over persecuted minorities in order to consolidate their own power.

    For details and an analysis of this historic decision and reaffirmation of American democracy against the threat of dictatorship that America has faced ever since Trump's accession to the White House three weeks ago after his stinging loss in the popular vote, see my February 9 post.

    My original comment follows:

    The ancient Roman historian Suetonius wrote the following about the expulsion of the Jews from Rome under the Emperor Tiberius in 19 A.D.

    Externas caerimonias, Aegyptios Iudaeosque ritus conspicuit, coactis qui superstitione ea tenebantur religiosas vestes cum instrumento omni comburere. Iudaeorum iuventutem per speciem sacramenti in provincias gravioris caeli distrubuit, reliquos gentis eiusdem vel similia sectantes urbe summovit, sub poena perpetuae servitutis nisi obtemberassent.

    ("He [Tiberius] abolished foreign cults, especially the Egyptian and Jewish rites, compelling all who were addicted to such supersitions to burn their religious vestments and all their paraphernalia. Those of the Jews who were of military age he assigned to provinces of less healthy climate, ostensibly to serve in the army; the others of that same race or similar beliefs he banished from the city, on pain of slavery for life if they did not obey."

    Roman emperors clearly had unlimited power over foreign populations, such as the Jews (as well as followers of Isis - a popular Egyptian goddess whom the above passage undoubtedly also refers to) 2,000 years ago.

    But does Donald Trump have the total power over immigration in 21st century America that Emperor Tiberius had in 1st century A.D. Rome?

    The initial answer of the Justice Department was evidently yes, according to the oral argument made by Trump's Justice Department on February 7 before a 3-judge panel of the 9th Circuit US Court of Appeals in the lawsuite brought by the states of Washington and Minnesota seeking to stay the president's January 27 executive order barring almost 200 million people from seven Muslim countries, as well as refugees from every country in the world, from entering the United States on tenuous "national security" grounds which have found little or no support among experts in that field (see the news report cited in my February 7 Immigration Daily comment on this same topic).

    However, according to available summaries of the oral argument (I have not been able to find a complete text, even though I listened to relevant parts of the argument myself on line), the three 9th Circuit judges hearing the DOJ motion to stay their order temporarily blocking Trump's ban on entry for immigrants and visitors from the Muslim countries concerned, and from refugees all over the world, were less than totally convinced that a US president has the same unfettered power over immigrants that the emperor Tiberius had according to Suetonius. See, New York Times, February 7:

    Appeals Court Panel Appears Skeptical of Trump's Travel Ban

    (I am sorry - I do not have a working link to this article. Please go to Google.)

    See also POLITICO,

    At issue is INA Section 212(f), which gives the president the power to:

    ...suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants

    whenever he finds that

    such entry would be detrimental to the interests of the United States.

    The question here is whether the courts have the power to review the reasonableness of a presidential finding that the such entry is "detrimental to the interests of the United States"

    As presented to the 9th Circuit, the argument of Trump's Justice Department lawyer was initially, in effect, that the above phrase is meaningless, and that the above language gives the president to ban anyone he wants to from the United States for any reason he wants.

    However, the requirement that the president must make such a finding in order to bar any foreign citizen or citizens from the United States must have some meaning. The statute does not say that the president has the power to bar immigrants from the United States by making a finding that doing so would shore up his political base, pay off a debt to his white nationalist supporters, or get even with any group of people who opposed his election.

    Nor does the statute say that the president can ban the entry of "anyone he or she wants to for any reason he/she wants or for no reason at all".

    This issue came up during the oral argument, when the DOJ lawyer, August Flentje, was asked by one of the judges, Willam Canby Jr., whether the president would have the power to say in the order:

    "We're not going to let any Muslims in."

    Flentje was, evidently, despite his original claim the the president has unlimited power under the above statute, unwilling to go that far. Instead, he argued that there was a national security justification for the order, which implies agreement that the president must show some objective basis for barring foreign citizens from the US.

    In addition, Flentje was asked point blank by another on of the three judges, Michelle Friedland:

    "Are you arguing, then, that the president's decision in that regard is unreviewable?"

    Flentje replied that:

    "There are obviously constitutional limitations."

    and that the Court should look at

    "the four corners of the document".

    He also agreed that a court has the power to examine whether a presidential order has a "good faith" foundation.

    These two phrases come from the leading Supreme Court cases of Kerry v. Din (2015) and Kleindienst v, Mandel (1972), both of which also became part of the discussion during the oral argument, in line with my previous prediction that the Circuit Court would consider them in reviewing the Muslim ban order.

    I will discuss these crucially important decisions in my next comment on this topic.

    For now, I will conclude today's comment by mentioning that, according to the New York Times for February 8, America's 45th president was not exactly amused by any suggestion from the appeals court that his power over admission of Muslim immigrants and all refugees to the US might be any less than the power of emperor Tiberius to expel Jews and followers of the goddess Isis from ancient Rome. See:

    Trump Calls Hearing on Immigration Ban "Disgraceful"

    Please go to Google to access this story. And see also:

    What does this say about our new president's respect for America's constitution, separation of powers and the rule of law which are at the foundation of our democracy?

    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. His email address is

    Updated 02-09-2017 at 09:48 PM by ImmigrationLawBlogs

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