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  1. Trump Asks Supreme Court to Reinstate Muslim Ban. Back to 19th Century Racial Exclusion Laws and Forward to 21st Century Dictatorship? Roger Algase

    Update: June 3, at 10:22 am

    For a powerful and well-documented article showing beyond any question that Trump's Muslim ban is only the first step toward a large scale rollback of immigration from all parts of the world outside Europe, in a major step backward toward the infamous "Nordics" only Johnson Reed Immigration Act of 1924 (which Adolf Hitler also wrote about admiringly in Mein Kampf), orchestrated by the president's white supremacist top immigration advisers, Stephen Bannon, Jeff Sessions and Stephen Miller, see Jamelle Boule writing in Slate on February 6:

    Government by White Nationalism Is Upon Us


    For a link to the full article, see:

    https://article.wn.com/view/2017/02/06/Government_by_White_Nationalism_Is_Upon_Us/


    My original comment appears below:

    In a dramatic move, the Trump administration asked the Supreme Court late on June 1 to reinstate the executive order banning approximately 180 million citizens of six almost 100 per cent Muslim countries from entering the US "temporarily" while the administration develops new screening methods.

    http://www.politico.com/story/2017/0...e-court-239050

    While the executive order only contemplates a 90-day entry ban, no one seriously believes, based on the president's past statements and those of his Congressional and administration supporters, that the new "screening methods" will take only 90 days to develop.

    Nor is there any indication that any such methods have been developed or proposed by the administration in the more than 120 days which have elapsed since the president's original seven Muslim country entry ban order was issued near the end of January, 2017.

    This is, even though, to the best of my understanding, no court has blocked the parts of either the first or second presidential orders directing the administration to develop such enhanced screening methods.

    Therefore, it is neither unreasonable nor unfair to assume that the "temporary" entry ban (often misleadingly called a "travel ban" in the media - the affected people are free to travel anywhere they wish - just not to the United States!) is meant to last indefinitely - in all probability as long as Donald Trump remains president of the United States.

    As several other commentators have also pointed out, the immediate issue before the High Court will most likely be to interpret the meaning of "bad faith" in an administrative decision or action denying a visa or otherwise refusing to admit one or more foreign citizens to the US.

    As other commentators have also mentioned, this issue derives from the doctrine set forth in Kleindienst v. Mandel (1972) that a decision to deny admission to the US is beyond court review if it is "facially legitimate and bona fide"; and the statement of Justice Kennedy in Kerry v. Din (2015) that, for the courts to intervene, there must be an "affirmative showing of bad faith".

    At the outset, since both of these cases involved immigrant visa denials to one person only, it is unlikely that the Justices in either of the above cases were thinking of developing a standard which would apply to exclusion of the entire citizenry of at least half a dozen countries, affecting almost 200 million people. Donald Trump had not yet been elected president, or even proposed a worldwide ban on Muslims coming to the US at the time of either of the above decisions.

    Therefore, neither Mandel nor Din might be an appropriate lens to look through in viewing the issues presented in the 4th Circuit's six Muslim country entry ban decision. But there is a precedent involving issues very similar to the president's entry ban affecting some 180 million Muslims.

    This precedent is a shameful one, just as much as a stain on American history as the infamous 1857 Dred Scott decision holding that people of African descent could never be U.S. citizens. I refer to the Chinese exclusion laws beginning from 1882 and lasting well into the 20th Century.

    Just as is the case with the six Muslim country entry ban and its predecessor seven-country ban, the Chinese exclusion laws did not specifically mention race (or, in the case of the Muslim country bans, religion). Instead, just as with Trumps's Muslim country ban executive orders were to do 135 years after the original Chinese exclusion law in 1885, they were based on nationality - i.e. citizens of China.

    Persons of Chinese ancestry in the entire rest of the world outside of China were not affected - that is, until the exclusion policy was later extended by Congress, first to Japan, and then to the entire rest of Asia in the early part of the 20th century - just as Trump's executive orders also contemplate extending the ban on entry to other countries that allegedly do not, in the president's sole determination, provide enough information about their citizens to the US in order to allow for "effective" screening.

    If one reads the six-country ban order and its predecessor seven country order fully, it is easy to see that the listed countries are merely the low hanging fruit. If the ban is upheld in court, other countries can and most likely will be added to the banned list, using the same transparent pretext that the ban is only "temporary", pending "improved" screening procedures.

    Which countries might these be? No one knows, but, based on statements that Trump's two top immigration advisers, Bannon and Sessions, have made, it is a safe bet that, in the spirit of the 1924 "Nordics" only Johnson-Reed Immigration Act which these two high administration officials have referred to favorably in quite recent statements (within the past two years), any additional banned countries will be from outside Europe.

    But to return to the Chinese exclusion laws, just as Trump and other supporters of the six Muslim country ban's alleged legality are now arguing that the latest version of the ban does not affect everyone in the six listed countries, because there are a number of waivers and exemptions (mainly those forced upon the administration by federal judges who blocked the original seven country version of the ban - sua sponte by the Trump administration these changes were not), the Chinese exclusion laws also contained some exceptions.

    The biggest exception, which must have exempted potentially millions of Chinese citizens in that vast country from the ban, was that the exclusion laws only applied to Chinese "laborers", not to "merchants".

    But did anyone argue that these laws were not racially motivated. just because they (initially) affected only one country in the entire world - China - and because possibly millions of citizens of that country were exempted? So far as I am aware, no one ever made such an absurd and hypocritical argument.

    To the contrary, in the notorious decision in Chae Chan Ping (1889) which is now known and will be forever known to legal scholars and historians as the "Chinese Exclusion Case", and which rivals the notorious 1857 Dred Scott decision itself in infamy, the Supreme Court expressly determined that the original Chinese exclusion law was racially motivated, and the court upheld that law mainly for that reason!

    At least in those days, America's politicians and judges were honest about the motives for banning immigrants based on race or religion, and they did not make any bones about it or pretend to rely on empty pretexts instead.

    With the Muslim country entry ban executive orders, is the Trump administration taking America back to the spirit of the Chinese exclusion laws, only without the same honesty as to the real motivation? For the above reasons, a "no" answer to the above question would be a very tough argument indeed.

    Having commented on the past, I will now turn to the question of what will be in store for America's future if the six-Muslim country entry ban is upheld by the Supreme Court.

    As I mentioned at the beginning of this comment, the likely standard that the Supreme Court will use is whether there is "an affirmative showing of bad faith" in the Muslim country entry ban order.

    No one will dispute that this is a very high bar to meet, just as no one will argue that INA Section 212(f) does not give the president very broad power to exclude almost any immigrants he wants to, for almost any reason, from the US. 4th Circuit Chief Judge Roger Gregory recognized this in his decision, and it is a forgone conclusion that the Supreme Court will mention this section too, whichever way it decides.

    However, as I also mention above, when Justice Kennedy formulated this standard in Kerry v. Din, it is highly unlikely that anyone could have imagined that the Supreme Court, only two years later, would be dealing with a presidential attempt to ban almost 200 million members (for starters) of a major world religion from America's shores. In this radically different context, Justice Kennedy's standard needs to be looked at from a larger perspective than merely that of whether, as in Din, (and in Din's predecessor decision, Mandel) the government adequately explained the reasons for a visa denial to a single individual applicant.

    In the case of the six Muslim country ban order, the president claims that "national security" is the sole reason for the ban, despite the overwhelming evidence of egregious bad faith, extended almost to the point of making a mockery of the entire judicial system, and the role of the courts as and independent branch of the government, that is listed at length in the 4th Circuit's decision and in other court decisions dealing with this issue showing beyond any rational doubt that the real reason for the ban was religious discrimination against Muslims.

    As the these court decisions all agree in pointing out, a very large part of the evidence that the real reason for the ban as religious animosity, not national security, comes out of the president's own mouth, and while, much of it relates to campaign statements, it is easy to make the case that the president's actions after being elected and assuming office are entirely consistent with the worst and most blatant of his numerous anti-Muslim campaign statements, as recited in these court decisions.

    It is not necessary to repeat this long list here, but to give just one example, Trump appointed his now disgraced national security adviser Michael Flynn, who called Islam a "cancer" rather than a real religion after the election, not during the campaign. The same is true with regard to senior presidential adviser Stephen Bannon, who has stated that the "West" (i.e. white Europe) is in a "War of Civilizations" with the Muslim world.

    The argument being put forth by the DOJ and other defenders of the ban order that Trump's wild, openly bigoted campaign statements against Muslims (such as for example: "Islam hates us " - recalling horrible memories of Joseph Goebbels: "Die Juden sind unser Unglueck"), which shocked and were condemned by many other Republican leaders at the time, (including now Vice-President Mike Pence) should be ignored and forgotten is more than disingenuous - it is Orwellian -it is asking the courts to relegate the real reasons for the ban order, coming out of the president's own mouth as I have mentioned, to the "Memory Hole" described in the novel 1984.

    The Justice Department is, however, not only asking the courts to ignore and disregard the obvious truth of the reasons for the ban order, but it is, by arguing in favor of almost unlimited presidential power to ban immigrants merely by saying the two magic words "national security", claiming that the president alone has the power to determine what the truth about his motivations for the ban order is.

    This goes far beyond merely looking backward to the Chinese exclusion laws of the past. Instead, it points toward a Brave New totalitarian world of the future, where the president has not only the sole power to determine the law regarding entry of immigrants, but also what is true and what is false.

    Is there anyone who is naive enough to think that if the Supreme Court bestows such enormous power on a single individual, this power will be used only against immigrants in the future, and not as a means to extinguish freedom and democracy for the American people as well?
    _________________________________
    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 receive work visas and green cards.

    Roger's email address is algaselex@gmail.com

    Updated 06-03-2017 at 10:28 AM by ImmigrationLawBlogs

  2. OCAHO Says Employee Unprotected

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

    Click image for larger version. 

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    In Thompson v. Sanchez Auto Services, LLC
    , 12 OCAHO no. 1302 (May 2017), OCAHO dismissed a complaint filed by a former employee of Sanchez Auto.

    In their decision, the Office of Chief Administrative Hearing Officer (OCAHO) highlighted a couple of key points to remember in the application of whether an employer’s actions violate 8 U.S.C §1324b – the anti-discrimination provisions of the Immigration and Nationality Act (INA). First, the complainant must be a protected individual – meaning a U.S. citizen; a permanent resident, who is not eligible for naturalization or less than six months has occurred since becoming eligible for naturalization; an asylee; or a refugee. In this case, Mr. Thompson became a permanent resident on September 25, 1994 and alleged discrimination between June 2012 and January 2013. Thus, Mr. Thompson was not a protected individual because he had been a permanent resident for about 18 years.

    The second point to be gleaned from this decision is that the statute only covers specific adverse employment actions - hiring, recruitment or firing of employees, retaliation and document abuse. Mr. Thompson alleged the employer failed to pay him proper wages. This is clearly not covered by §1324b.

    Thus, for the above reasons as well as others (which will not be discussed in this article), OCAHO dismissed Mr. Thompson’s complaint.
  3. I Don't Know, I Don't Know, I Don't Know

    If you are an asylum seeker waiting for your interview, repeat these words: I don't know. Again: I don't know. Say them out loud: I don't know. One more time: I don't know. These three words may mark the difference between an asylum grant and a denial, but too few asylum seekers ever utter them.
    "I appear wise because I do not think I know what I do not know" - Socrates. #BeLikeSocrates
    I have previously written about how it is important for lawyers to use these same words, and I might even go as far as saying that if you visit a lawyer and he or she never says "I don't know," you might be better off finding a different lawyer. When we do not know or acknowledge the limits of our own ignorance, we risk giving bad advice.

    Asylum seekers also need to practice their I-don't-knows. If you can learn to master these three little words, you might save yourself a whole lot of trouble. Why? Because too many applicants answer questions where (1) They do not understand the question, (2) They do not know the answer, or (3) They do not remember the answer. And if asylum applicants give an answer when, in fact, they do not know, it starts them on a path that could easily end in a denial.


    Here’s an example from a recent case I worked on. The asylum applicant’s father was prominent in his country’s government, but the applicant did not know much about his father’s position. The Asylum Officer asked for some details about the father’s job, and the applicant answered. But the applicant really did not know the answer. He just made a series of assumptions based on the limited information he did know. It turns out, the assumptions were wrong, and the applicant’s testimony ended up being inconsistent with the testimony of other family members. Fortunately, we had a good Asylum Officer whose questions brought my client's assumptions to light, and so I think the applicant’s credibility was not damaged. Nevertheless, had the applicant just said, “I don’t know” instead of assuming, he would have avoided a potential pitfall (and—more importantly from my point of view—he would have saved his attorney a few unwelcome heart palpitations).


    Having observed many such interactions, I always advise my clients to say that they do not know or do not remember, if that is the case. But most people don't fully grasp the importance of only answering when they know the answer. If you guess—about a date or an event—and you are wrong, you risk creating an inconsistency, meaning that your spoken testimony may end up being different from your written statement or evidence, or different from information that the U.S. government already has about you (from your visa application, for example). The Asylum Officer or Immigration Judge may view inconsistencies as an indicator that you are not telling the truth. The theory (flawed, in my opinion) is that people who tell the truth will present consistent testimony in their oral and written statements, and in all the interviews with the U.S. government. The bottom line is this: If your testimony is inconsistent, the adjudicator may view you as a liar and deny your case on this basis.


    I get that it is not always easy to say that you don’t know. Most applicants understand that it is important to answer the questions; after all, that is why they are at the interview or in court in the first place. And of course, not answering can create other issues (it is common to hear adjudicators ask, “Why can’t you remember?” to applicants trying to recall relatively obscure events from many years in the past). Plus, in the stressful environment of the Asylum Office or Immigration Court, many applicants feel they need to give an answer, even if they are not sure what the answer is.


    Indeed, there are times when saying “I don’t know” can be a real problem for a case. One of my clients was recently asked about his prior political activity. He had no evidence showing his political involvement, and so his testimony took on added importance. In that case, if he were asked about the philosophy of his party or the party’s leadership, the inability to answer might be viewed as evidence that he was not active in the party. Fortunately, in our case, the client knew the basic beliefs of the party and the names of its leaders. He was also able to describe in detail his political activities. His involvement in the party was years ago, but I suspect that if he had told the Judge that he did not remember or did not know, it would have negatively affected his case (maybe it’s a topic for another day, but the fact is, many political activists do not know much about their parties—they have joined because a parent or sibling was a member, or due to ethnic or regional loyalty; the party’s supposed philosophy, its activities, and its leaders are of little concern to them).


    It is preferable to know your case and answer the questions that are asked. So review your affidavit and evidence before your hearing. Practice answering questions with your lawyer or with a friend. Try to remember the dates (at least more or less) of events. Know the names of relevant people and places, and about your political party or religion, or whatever forms the basis of your asylum claim. Try to remember all this, but if you can't, don't be afraid to say "I don't know." As we have seen, not knowing can be a problem. But not knowing and guessing can be a disaster.

    Originally posted on the Asylumist: www.Asylumist.com.
  4. Prosecutors Protect Immigrants From Deportation For Minor Crimes

    by , 06-01-2017 at 11:01 AM (Matthew Kolken on Deportation And Removal)

    Via NPR:

    Prosecutors have wide latitude when negotiating plea deals. It typically depends on the facts of each case. In several U.S. cities now, prosecutors are using their discretion to protect defendants who are immigrants. They want to ensure that immigrants, whether here illegally or seeking citizenship, don't get deported for minor crimes. NPR's Richard Gonzales reports.
  5. Texas Legislator Calls ICE to Intimidate Immigrants and Americans From Exercising Free Speech Rights to Protest Against S.B. 4. Roger Algase

    Update. June 2, 12:35 pm.

    The danger to America's democracy that the call by a Texas Republican state legislator to ICE to break up a demonstration by US citizens, not only immigrants, against S.B. 4 is underscored by a frightening report in alternet.org that Americans who protested against Trump's inauguration are now facing up to 70 or 80 years in prison for their actions in expressing their views.

    http://www.alternet.org/activism/unp...s-prison-their

    If a campaign of terror and fear against immigrants at both the federal and state levels is allowed to continue unchecked, how much longer can American citizens expect to keep their freedoms?

    The Nuremberg laws in 1930's Germany were aimed ostensibly against the Jews, but all of that country's non-Jewish Germans eventually wound up losing their freedom as well.

    My original comment follows:

    Salon.com reports that on May 29, when hundreds of pro-immigrant activists, including many mainly Hispanic American citizens, appeared at the Texas legislature to protest against the recently enacted Texas S.B. 4 law, which has been criticized as arguably even harsher and more punitive against immigrants than Arizona's notorious discredited S.B. 1070 law, key parts of which were struck down by the Supreme Court, a Republican State legislator, Matt Rinaldi, announced that he had called ICE in order to intimidate the protesters from exercising their Constitutional free speech rights.

    The story is available at:

    http://www.salon.com/2017/05/31/a-ne...nt-protesters/

    Salon reports as follows:

    "Hundreds of protesters showed up at the state capitol to register their anger with the statute [S.B. 4]...

    The protesters unnerved Republican legislators who support the bill, and Rinaldi, in an obvious fit of rage, declared on Facebook that he had called ICE on the protesters."

    The report continues:

    "Democratic state Rep. Cesar Blanco, in a phone conversation, accused Rinaldi of trying to 'intimidate people from exercising their First Amendment Rights,' adding that the protests had been peaceful.

    'It's a form of intimidation, agreed Lizet Ocampo, the political director of People for the American Way, in another phone conversation. 'It's offensive too, to see a group of protesters who obviously look Hispanic and call ICE on them.'...

    Ocampo noted that Rinaldi's action 'provides
    a visual of what's behind this legislation, which is an animosity toward Latinos and Mexican immigrants in the state.'

    Blanco argued, 'Because individuals in the gallery were majority Hispanic, [Rinaldi] assumed people there were undocumented...The fact that a Republican member assumed that people who were protesting there were undocumented says everything about SB4.'

    Aguirre, whose group helped organize the protests, said, "The reality is that it was a mix of folks who were immigrants and folks who were US citizens...'"

    There can be little doubt that calling in ICE to stop a peaceful, Constitutionally protected protest is just as intimidating for American citizens as for immigrants, particularly when most or all of the protesters may have the same ethnicity, putting American citizens at risk of being arrested or asked to show their papers along with immigrants.

    But none of this is new. In 1936, Germany enacted the Nuremberg Laws against the Jews, just as states such as Texas and Arizona, to name only two, have tried to pass harsh and punitive laws against Latino immigrants. In the case of Germany, all Germans wound up losing their freedom, not only the Jews.

    If the state and federal governments are free to ramp up arrests, incarceration and mass deportation of Latino and other non-European immigrants, how long will it be before American citizens also lose their free speech rights and Constitutional freedoms in the "Era of Donald Trump"?
    __________________________________
    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.

    Roger's principal areas of practice include H-1B specialty occupation and O-1 extraordinary ability visas, and green cards through Labor Certification or through marriage. His email address is algaselex@gmail.com

    Updated 06-09-2017 at 09:43 AM by ImmigrationLawBlogs

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