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  1. Muslim Ban Continues Long Tradition of Racial/Religious Discrimination in US (and German) Immigration and Citizenship Law. Roger Algase

    I have written extensively about various legal issues arising from Donald Trump's Muslim entry ban orders (often misleadingly and euphemistically referred to as a "travel ban", despite the fact that the nearly 200 million people in six countries with more than 99 per cent Muslim populations who are targeted by his latest order are free to travel anywhere they want - just not to the United States!).

    In my previous comments, I have focused on the entry ban orders as they affect Muslims in particular, since that is obviously the main purpose of the orders, in view of the fact that less than one percent of the six countries' citizens affected belong to any other religious group or practice any other faith. Moreover, the lawsuits in US federal courts challenging the Muslim entry ban orders, in including IRAP v. Trump now before the Supreme Court, are based on the claim that the ban orders infringe on the Constitutional rights to freedom of religion of American Muslim citizens.

    However, Muslim US citizens constitute only about one percent of the total US population. Does this mean, therefore, that any comment on the issue of the legal validity, or lack of it, concerning Donald Trump's Muslim ban orders are necessarily written only from the standpoint of advocacy on behalf of the interests of a small and limited group of people in America, namely American Muslims?

    Obviously, such a limited view of the significance of the Muslim ban orders would be untenable. Opposition to the infamous Chinese exclusion laws of the late 19th and early 20th centuries, to the ban on entry to America by Jewish immigrants trying to escape Hitler's gas chambers and ovens during the Holocaust, to the incarceration of Japanese Americans during WW2, and to the segregation laws against African-Americans, was based on the fact that injustice, discrimination and persecution against any group of people based on their race or religion affects the rights and freedom of all the people of America.

    This comment, therefore, will look at the president's Muslim ban orders, not just from the standpoint of their effect on people who happen to belong to this major world religion, but rather in the context of America's long history of legal enactments based on discrimination against racial and religious groups, as well as the influence that American legislation in this area had on laws adopted by one other country against its own minorities (one in particular) in another country, Germany, during the 1930's.

    In doing so, I will refer to an article dealing with this subject by one of America's most distinguished and respected scholars, Columbia University Professor Jeffrey Sachs. His article, dated March 19, is called:

    The Muslim ban and American history.

    This article should be required reading for everyone who is seriously interested in the legal foundation for and long legal history leading up to Donald Trump's Muslim ban executive orders.

    Sachs begins:

    "Donald Trump's revised executive order to bar entry into the United States from six Muslim-majority countries is the latest salvo in America's latest culture wars over race and American identity. As a matter of national security and law, the policy makes no sense, as the US District Court for the District of Hawaii has made clear."

    To the contrary, Sachs writes, Trump's objective in the Muslim ban executive orders is:

    " ...making Muslims a target of hatred among working class white voters, a strategy with a long and successful history..."

    At the outset, the decision of the District Court of Hawaii in the revised Muslim ban case, which Sachs refers to in above, contains a detailed discussion the reasons why, when Constitutional rights are involved, such as, in this case, freedom of religion and equal protection of the law for Muslim-American citizens, well settled case law allows the Courts to go behind the face of an executive order or decision in order to determine with it was motivated in whole or in part by impermissible bias.

    But even if the strained and untenable argument which had been made by some commentators that the Supreme Court's 1972 decision in Kleindienst v. Mandel, a visa denial case, precludes court interference with an executive decision or order refusing a visa or barring entry to the US if the decision or order is facially legitimate and bona fide - an argument shaky enough at the outset since the above Mandel "doctrine" was only dictum, because the issue of good faith in the denial decision was not before that court or involved in its decision - it is clear from Trump's Muslim ban orders, both first and second, that they were not even facially legitimate.

    The disconnect between the stated reason for these orders on their face, namely that further review of "vetting" procedures was needed for visitors and immigrants from the targeted countries, and the actual action taken by the orders allegedly intended to accomplish the purpose of more enhanced "vetting", namely banning the entire population, or close to it, of these countries from entering the US while the enhanced "vetting" procedures are being drawn up is so glaring and absurd, as to raise serious doubts as the the legitimacy and good faith of these orders purely by looking them on their face only, as some commentators claim that the non-legally binding Mandel dictum mandates the courts to do.

    In a forthcoming comment, I will go into more detail about America's long history of legal measures discriminating against various racial and religious immigrant groups, as Sachs describes it, as well as how, as Sachs also explains America's history of legal discrimination against immigrants on the basis of race and religion also influenced lawmakers in Germany during the 1930's to develop legislation against the Jews and other targets of the regime.

    Roger Algase
    Attorney at Law

    Updated 07-06-2017 at 12:04 PM by ImmigrationLawBlogs

  2. Asplundh Manager & Supervisors Charged with hiring Undocumented Workers

    By: Bruce Buchanan, Sebelist Buchanan Law, PLLC

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    Federal prosecutors charged three managers/supervisors of Asplundh Tree Expert Inc. with conspiring to hire undocumented workers using false identification and Social Security numbers. Asplundh, a nationwide company, removes brush and vegetation from electric and gas lines.

    In 2009, Asplundh had their I-9 forms audited by Immigration and Customs Enforcement (ICE). The ICE audit determined over 100 employees were undocumented; thus, Asplundh fired the employees.

    After the ICE audit of Asplundh’s I-9 forms, prosecutors allege workers, fired for being undocumented, were rehired under false identities. Larry Gauger, a regional manager charged with conspiracy, "instructed management that it would have 'plausible deniability' as to the fraudulent hiring because even though the employees' Social Security numbers did not truly belong to these employees, the employees' proffered Social Security numbers would be positive matches in the E-Verify database." Jude Solis and Juan Rodriguez, supervisors for Asplundh, were also charged with conspiracy and fraud.

    These indictments are clear proof that knowingly hiring undocumented workers can have criminal consequences. This is especially so when you assist the undocumented workers to obtain fake ID.
  3. Letters of the Week: July 3 - July 9

  4. Five Reasons Why the Supreme Court's Decision in Kleindienst v. Mandel Should Not Be Followed as a Precedent in the Muslim Ban Lawsuit. Roger Algase

    If the US Supreme Court ever actually makes a final determination (rather than the June 26 temporary ruling) concerning the IRAP v. Trump lawsuit involving Donald Trump's ban on entry to the US by almost 200 million citizens of six almost 100 percent countries (which I hereafter refer to as a "Muslim ban" rather than the misleading "Travel Ban" - since the affected people are free to travel anywhere they want under the president's order - just not to the United States!) the 1972 Supreme Court case of Kleindienst v. Mandel is likely to come under discussion as a claimed precedent, especially by supporters of upholding that ban order.

    This comment will take a look and some of the main arguments for and against relying on this case as justification for upholding the ban, and will offer my own conclusion about the extent to which this decision should be followed, if at all, in the current Muslim ban litigation.

    First, I will summarize the facts and result in the Mandel decision. In that case, Mandel, a Belgian citizen and Trotskyist writer and advocate, who opposed the US system of government and was openly committed to its overthrow, was denied a visa to meet with academics in the United States who wished to discuss his views face to face.

    Clearly, Mandel was inadmissible to the US under a statute which expressly barred anyone who advocated the overthrow of the US government from coming to the United States.

    However, the issue in that case was not whether the statute in question applied to Mandel or not - it clearly did - but whether the American citizens who claimed to have a first amendment constitutional interest in meeting with Mandel had the right to challenge the US visa officer's refusal to give Mandel a waiver of this prohibition, which the visa officer was expressly authorized to grant as a matter of discretion under that law.

    The visa officer in question refused to grant a waiver, even though Mandel had been granted a waiver before and had actually entered the US with that waiver. The US academics, on Mandel's behalf, claimed that the US consular officer had failed to give an adequate explanation for denying the waiver.

    The only explanation for the denial was that Mandel had allegedly violated the conditions of his previous visitor visa by engaging in activities in the United States that, in the visa officer's view, went beyond the scope of those permitted by that previous visa.

    The plaintiffs in the lawsuit over that denial argued that the consular officer was obligated to give Mandel a fuller and more detailed explanation for the visa refusal. The Supreme Court majority held that the consular officer was not under any such obligation, and that the courts had no power to review any consular decision to deny a visa that was "facially legitimate and bona fide".

    The main question is whether this standard is in fact the correct one to apply in the current IRAP litigation, and, if so, what does this standard actually mean?

    At the outset, it should be pointed out that, under well settled law, our legal system distinguishes between two types of statements in previous court decisions in order to decide whether to follow them as precedents - statements which were essential to the precedent court's actual decision, known as a "holding", and those which deal with issues that were not actually involved in the litigation before the court and therefore not essential to reaching the court's decision.

    These latter statements, which do not have precedent value and which future courts are not obligated to follow, are known as "dicta".

    Of these two types of judicial statements, the test that a consular decision must be facially legitimate and bona fide was obviously dictum, because there was no claim of lack of good faith raised in the Mandel case and therefore, the question of whether the visa refusal was issued in good faith or not, was not before the Mandel court and was not essential to its decision.

    Therefore, this so called "Mandel doctrine" (for lack of a better term), is merely non-binding dictum, which puts it on a shaky basis for use as a precedent in the IRAP v. Trump case.

    But this is not the only factor that makes the "Mandel doctrine" highly questionable for use as a precedent in the IRAP v. Trump Muslim ban lawsuit. There is also another tool of legal analysis that every lawyer learns, almost from Day 1 of attending law school.

    This is that if the "precedent" decision was distinguishable from the case before the court in some important or meaningful way, then that decision does not need to be followed.

    Obviously, not every distinction between two different cases is important enough to be meaningful, or "material' as lawyers like to say. Suppose that in the first case, the plaintiff was a man 5 ft. 8 inches tall who parted his hair in the middle. But in the case at bar, suppose the plaintiff was a man who is over 6 feet tall and who parts his hair on the side (or who doesn't have any hair at all).

    In most situations, unless the issue in both cases deals with acting or modeling, or in some other way depends on the person's physical appearance, this kind of distinction between the two cases would obviously be meaningless.

    But in other types of cases, the distinctions may be so important that the reasoning which was the basis for the decision in the first case may not make any sense when applied to the second case.

    Let us now look at some of the distinctions between Mandel and IRAP:

    Mandel involved denial of a visa to just one person.

    IRAP, by contrast, involves a presidential order, which, by a single stroke of a pen, makes almost 200 million people in six countries ineligible to enter the United States.

    Second, in Mandel, the visa applicant was ineligible by US law to enter the United States to begin with because of opinions which were clearly hostile to the interests of the United States, and the only issue was whether he was qualified for a discretionary exemption from this law.

    In IRAP, on the other hand, the 200 million people barred by presidential order would have not have otherwise been disqualified from entering the US unless there was some other legal reason for doing so on a case by case basis.

    Third, in Mandel, the visa applicant, allegedly, already had a negative US immigration history; he was found by the visa officer to have violated the terms of a previous visa in the United States.

    In contrast, the almost 200 million people banned by the president's Muslim ban order are ineligible to enter the US regardless of whether they have ever been in this country and done anything wrong here or not.

    Does anyone see, so far, how the Mandel and IRAP decisions might be at least a "teeny - weeny" different from each other, just as, for example, 200 million people is just a "teeny-weeny" bit more than one person, and someone who has been in the US and (allegedly) violated the terms of a visa (while also advocating that our form of government is evil and should be overthrown) might deserve to be treated differently from someone who has never broken any of our laws and never said or done anything hostile to the United States?

    But let's continue:

    Fourth, since it has been a longstanding rule (originating in the time of the infamous 1880's Chinese exclusion laws about which I will have more to say below) that a foreign citizen does not have the right to challenge a US consular visa denial in court, but only an American citizen whose Constitutional rights are affected by the visa denial may do so, the Mandel lawsuit challenging the visa denial was filed by American academics who claimed that their first amendment free speech rights to meet with Mandel and discuss his views in person would be impaired if he could not come to the United States.

    While the Supreme Court recognized that the American plaintiffs had a valid Constitutional interest in meeting with Mandel personally, the court also pointed out that there were other possible ways of communicating with hims and discussing his opinions, namely by transatlantic phone, which is what actually took place.

    (For the benefit of younger readers, I should point out that in 1972, there was no such thing as Skype, no text messaging, no email; indeed - if one can imagine such a thing - no Internet at all.)

    However, despite the need to rely on the ancient technology, dating all the way back to the late 19th century, known as the telephone, free and open communication and discussion between Mandel and the comparatively modest number of American academics who were interested in speaking with him was able to take place, so it was impossible to argue that the visa denial cut off their right to free speech entirely.

    Therefore, while the effect of the visa denial on the Constitutional rights of American citizens was not wholly absent, it was difficult to show that it was overwhelming.

    In the case of Trump's Muslim ban executive orders, the danger to the First Amendment right to free exercise of religion by some 3 or 4 million US citizen Muslims by barring almost 200 million members of their religion from entering the US solely because they are citizens of countries where almost 100 per cent of the population are Muslims cannot possibly by overstated.

    Even if the president had not, as a candidate, called for a worldwide ban on entry to the US by adherents of the Muslim religion in December, 2015; even if he had not told CNN in March, 2016 that "I think that Islam hates us"; even if he had not - after becoming president - not during the campaign - appointed the since disgraced and fired General Michael Flynn, who has called Islam a "cancer" rather than a religion to a top national security advisory post, there cannot be any question that one of the main purposes of Trump's Muslim ban was to stigmatize Islam as a potentially dangerous religion, whose American citizen followers in the United States should be regarded with suspicion and opprobrium.

    Indeed, while Trump has never himself suggested that American Muslims should be locked up, as was the case with Japanese-Americans during WW2, some have his supporters have raised this as a possibility, and Trump has himself has suggested that there should be "many databases" used to track the activities of American Muslims.

    What does this say about freedom of religion in America?

    Fifth, and this is arguably the most important distinction of all between Mandel and the IRAP v. Trump Muslim ban lawsuit, while the Mandel Court mentioned the issue of good faith almost as an aside in its above quoted dictum, that decision did not turn on any issue of good faith, because there was no finding or allegation in that case that the government tried to mislead Mandel or the US citizen plaintiffs about the real reasons for the visa denial or that its conduct was in any way deceptive.

    In contrast, in IRAP v. Trump, allegations of bad faith, i.e. deceptive conduct by the president and his administration in promulgating and defending his Muslim ban orders, both the original seven country order and the current six country one are front and center of this entire litigation, if not the only real issue.

    One has only to read the 10-3 majority opinion of the full 4th Circuit Court of Appeals, sitting en banc, which is now before the Supreme Court for review, to see this.

    Neither the facts nor the opinion in Mandel provide any significant guidance for the courts as to how to handle a visa denial or entry ban case where there is evidence of bad faith in the decision. The pro forma dictum of the Court, arguably issued with an implied expectation that bad faith on the part of the US government would rarely if ever actually become an issue in such a case, does not provide any rationale which future courts are required to accept as binding.

    Indeed Mandel provides no rationale at all for dealing with bad faith issues. Clearly, the Justices in that 1972 decision had no way of anticipating that Donald J. Trump would one day become the president of the United States

    The forthcoming second part of my comment on the Mandel decision will discuss in greater detail what the Supreme Court may or may not have meant by use of the cryptic, unexplained words "facially legitimate and bona fide" in that case..

    It will also discuss whether the doctrine that underpins the entire Mandel decision, namely that non-US citizens have no right to challenge a visa or entry denial in court, known as the "Plenary Power" doctrine, should still be adhered to by the courts in 21st Century America.

    No court in the United States openly follows the Supreme Court's decisions upholding the idea of racial inferiority of American-Americans in Dred Scott (1857) or Plessy v. Ferguson (1897). Why should the courts continue to follow the Plenary Power doctrine, which had its origins in another thoroughly discredited Supreme Court decision based on the alleged racial inferiority of a certain immigrant group? (Chae Chan Ping, 1889.)

    Roger Algase
    Attorney at Law

    Updated 07-08-2017 at 05:01 AM by ImmigrationLawBlogs

  5. Supreme Court will not consider evidence of religious discrimination in its travel ban decision. By Nolan Rappaport

    President Donald Trump filed an appeal with the Supreme Court from adverse decisions in two circuit courts on the revised version of his travel ban Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

    If the Court decides this appeal on its merits, which I do not expect the Court to do, the most controversial issue will be the claim that Trump is using a national security reason for the travel ban to cover up his real purpose, religious discrimination, and, therefore, the Executive Order violates the First Amendment’s Establishment Clause.

    Even if Trump had hostility towards the Muslim religion in his heart when he decided to write the travel ban, it is not the reason he stated in the Executive Order, and the travel ban opponents have not established a legitimate basis for rejecting the stated reason.

    The test is whether permitting the banned aliens to enter the United States would be detrimental to the interests of the United States.

    Trump issued the travel ban order pursuant to section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:

    (f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    May not need to state a reason at all.

    In Kleindienst v. Mandel, the Court observed that, without exception, it has sustained Congress’ “plenary power to make rules for the admission of aliens.” And, “The power of Congress .... to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Page 408 U. S. 766)


    Published originally on Huffington Post.

    About the author.
    Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.
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