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President Donald Trumpís immigration executive order, ďProtecting the Nation from Foreign Terrorist Entry into the United States,Ē 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 ďis who the individual claims to be and is not a security or public-safety threat.Ē
The countries on this list will be considered ďfor inclusion on a presidential proclamation that would prohibit the entry of foreign nationals Ö from countries that do not provide theĒ requested information ďuntil compliance occurs.Ē
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 09:15 PM by ImmigrationLawBlogs
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 ilw.com 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 firstname.lastname@example.org
Updated 02-09-2017 at 10:48 PM by ImmigrationLawBlogs
The flimsy nature of Donald Trump's "national security" pretext for banning almost 200 million people from seven Muslim countries without any showing that there is in fact reason to believe that any of them are dangerous is apparent from a declaration, filed by a number of former national security officials with the 9th Circuit Court of Appeals, condemning the executive order as potentially doing "long term damage" to national security.
The signers include two former Secretaries of State, Madeline Allbright and John Kerry. For a link to the full statement, as well as extracts from many other similar ones by experts and business leaders, see:
Among other things, the lack of any real substance to Trump's national security claim in the executive order may make it even more likely that the 9th Circuit Court of Appeals could uphold the District Court's stay against enforcing the executive order.
This is under the doctrine enunciated in Kleindienst v Mandel (S. Ct 1972) and again in Kerry v. Din (S. Ct. 2015) that if denial of a visa or entry to a foreign citizen would infringe the Constitutional rights of a US citizen or citizens, the courts have the power to look into the reasons for denial to see if they are genuine and in good faith on their face.
As shown in my discussion of those decisions in an upcoming comment, this is not a very high standard. But it is one which, arguably, Trump's Muslim ban would have a very hard time meeting, on the basis of the above expert statements filed with the 9th Circuit.
I will discuss this issue in more detail in a future comment.
However, there is another issue raised by Trump's January 27 executive order which goes beyond the question whether barring up to 200 million people from the United States because of their religion, using "Trumped-up" national security grounds as an excuse, can be justified under our laws and Constitution.
This issue is whether Trump's Muslim immigrant ban is merely a first step to shutting down America's legal immigration system, or at least a major part of it.
The Hill reports on February 7 that two Republican Senators, Tom Cotton (Ark.) and David Perdue (Ga.) are introducing legislation which would cut the number of green cards each year in half, from 1,000,000 to 500,000, mainly by eliminating a number of family preference green card categories, as well as the diversity green card. Both of these visa types have enabled immigrants from every part of the world, not just Europe, to come to the US.
The pretext, typical of restrictionist rhetoric used by immigration opponents such as Senator Jeff Sessions, not to mention Trump himself in his August 31, 2016 Phoenix immigration speech, is that America should return to "historical" levels of immigration.
The unstated, but clear message, is, without any serious doubt, that America should also to return to the "historical" skin color of its immigrants - at least before 1965. See:
Attorney at Law
Updated 02-07-2017 at 02:46 PM by ImmigrationLawBlogs
President Trump's Executive Orders ("EOs") on immigration triggered a series of lawsuits that are still playing out in federal courts across the nation. The lawsuits have resulted in orders barring certain portions of the EOs, at least for the time being.
Judge James Robart: Referees helping Refugees.
For those not familiar with the U.S. system, we have three (supposedly) co-equal branches of government: The executive (the President), the legislative (Congress), and the judicial (federal courts). The judicial generally acts as an umpire or referee, making sure that the other branches play by the rules, or in this case, the Constitution and laws of the United States. What has been happening with the EOs is that the President is asserting his authority over immigration (and the President does have broad authority over immigration), but he is constrained by the U.S. Constitution and the existing immigration law. The lawsuits argue that the President has overstepped his authority, and so far, most courts have agreed to issue preliminary orders blocking the EOs, at least until the courts can more fully analyze whether the orders comply with the law.
Probably the broadest decision thus far issued was by a U.S. District Judge in Seattle, James Robart. The lawsuit was brought by Washington State and the state of Minnesota in their role as "parens patriae of the residents living in their borders." The decision temporary stays several key portions of the EO related to terrorism based on the Judge's conclusion that the states' lawsuit was likely to succeed on the merits and that the states face "immediate and irreparable injury" as a result of the EOs. Specifically, the Judge found that the EO "adversely affects the States' residents in the areas of employment, education, business, family relations, and freedom to travel." In addition, the Judge found that, "the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injuries to the States' operations, tax bases, and public funds." Thus, the Judge issued a temporary restraining order against the EO. The order blocks portions of the EO nationwide, and will remain in effect until the Court can reach a decision on the merits of the lawsuit (or until it is overturned by a higher court).
The President, through the Department of Justice, filed an appeal, but the U.S. Court of Appeals for the Ninth Circuit has thus far refused to overturn the District Judge's order. So what does all this mean?
First, according to its website, USCIS "continues to adjudicate applications and petitions filed for or on behalf of individuals in the United States regardless of their country of origin, and applications and petitions of lawful permanent residents outside the U.S. USCIS also continues to adjudicate applications and petitions for individuals outside the U.S. whose approval does not directly confer travel authorization. Applications to adjust status also continue to be adjudicated, according to existing policies and procedures, for applicants who are nationals of countries designated in the Jan. 27, 2017, 'Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.'" This means that even if you are from one of the "banned" countries--Iraq, Iran, Syria, Sudan, Somalia, Libya or Yemen--your case will be processed as before the EO. So USCIS should continue to issue decisions for nationals of such countries, at least for the time being.
Second, the State Department will resume issuing visas for people from the listed countries, including refugees. U.S. visas for nationals of these countries that were "provisionally revoked" are now "valid for travel to the United States, if the holder is otherwise eligible." Meaning that if you are from a banned country and you have a valid U.S. visa, you should be able to enter the United States. Again, the Judge's order is temporary, and it may be overturned, so if you have a visa and wish to come to the United States, you should do so immediately, since we do not know for how long the Judge's temporary restraining order will remain in place.
Third, DHS/Customs and Border Protection is also following the Judge's order, even if it is doing so reluctantly. From the CBP website:
In accordance with the judge's ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. At the earliest possible time, the Department of Justice intends to file an emergency stay of this order and defend the President's Executive Order, which is lawful and appropriate. The Order is intended to protect the homeland and the American people, and the President has no higher duty and responsibility than to do so.
So all people with valid visas and who are otherwise eligible to enter--including nationals of the banned countries--should be able to board planes, travel to the United States, and enter the country. In short, the Judge's order restores the situation for such travelers to how it was prior to the EOs.
Finally, I wrote in an update to last week's post that additional countries may be added to the banned list. As long as the Judge's order is in place, I doubt that will happen, and--more importantly--the State Department informed the American Immigration Lawyer's Association that there was no "addendum, annex or amendment now being worked on to expand visa revocations or the travel ban to countries other than those currently implicated in [the] Executive Order." Hopefully, this means that we will not see additional countries added to the "banned" list.
The legal fight over the EOs is a rapidly moving target, so before you make any travel plans, please check the news or check with a lawyer to make sure there are no additional changes affecting you. I will also try to keep posting updates here.
Originally posted on the Asylumist: www.Asylumist.com.
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