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In a resounding declaration that the president of the United States is not a king or emperor with absolute power to determine which foreign citizens can enter the United States, or to discriminate against nearly 200 million Muslims from seven different countries in the name of national security, a unanimous 3-judge panel of the US Court of Appeals for the 9th Circuit refused to lift a temporary restraining order of the district court barring implementation of Donald Trump's January 27 executive order banning citizens of the affected countries and refugees from every country in the world from coming to the United States.
For a link to the full text of the decision, see the following POLITICO story:
For reasons that will be explained in a detailed analysis of the decison to appear in my forthcoming comment, the 9th Circuit's order was not only a ringing declaration of judicial independence from a president who has sought to undermine the only branch of government that is not compliantly bending to his will, but it is a reaffirmation of the values of democracy and equality of all people on which America was founded.
The decision also, at least temporarily, blocks the dangerous march toward one-man dictatorship that has typified the Trump presidency in the three short weeks that he has been in the White House. By making clear that there are limits to the power of the president to bar immigrants from entry to the United States under INA Section 212(f), and by calling a halt to his attempt to single out all immigrants from designated Muslim countries as "dangerous" for America's "national security" without showing any rational basis for such a broad finding, the 9th Circuit has also taken a major step toward protecting the religious freedom and other Constitutional rights of Muslim US citizens and other Muslims who are in the US with legal status, as well as Americans and legal immigrants of all faiths and backgrounds, against possible persecution and discrimination by the Trump administration because of their religious or political beliefs.
Protecting the free speech and other Constitutional rights of pro-immigration US citizens will very likely also become a very big issue now that Jeff Sessions has now been confirmed as Attorney General, with power to use the massive weapons of the federal criminal laws, notably INA Section 274, against American citizens who support immigrant rights.
I will also discuss INA Section 274, a very broad statute which, among other things, makes it a federal felony to "assist" anyone who is trying to remain in the United States illegally, in more detail in an upcoming comment.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been representing mainly skilled and professional immigrants from diverse countries of the world in employment-based visa and green card applications for more than 35 years. Roger's email address is firstname.lastname@example.org
Updated 02-12-2017 at 07:50 PM by ImmigrationLawBlogs
by Chris Musillo
The Department of State has just issued the March 2017 Visa Bulletin. This is the sixth Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.
March 2017 Visa Bulletin
Final Action Dates
Applications with these dates may be approved for their Green Card (Permanent Residency card).
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 progression continues, moving an additional two months. Consular processed EB-3 are effectively current.
China: The China EB-2 date again moved up one month. The China EB-3 date progressed nearly six months! The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.
India: EB-2 India moved up about 6 weeks, while EB-3 India stayed the same, unfortunately.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead by nearly six more months. The Philippine EB-3 number essentially cleaned out all 2010 and 2011 EB-3 visas in less than 6 months months. This is what we have expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").
The Visa Bulletin also included projections for the next several months of Visa Bulletins.
EMPLOYMENT-based categories (potential monthly movement)
EB-1: The category will remain “Current”.
China and India: A Final Action Date is likely to be imposed by August.
(MU Law note: this is not unusual and happens most years. This should not concern anyone.)
China: Up to five weeks.
India: Up to one month.
Worldwide: Up to three months.
China: Up to six months.
India: Extremely limited forward movement.
Mexico: Will remain at the worldwide date.
Philippines: Up to six months.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
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 ilw.com 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!
Attorney at Law
Updated 02-11-2017 at 02:50 AM by ImmigrationLawBlogs
By Bruce Buchanan, Sebelist Buchanan Law
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.
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).
II. STATUTORY AND CONSTITUTIONAL FRAMEWORK
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 11:10 AM by MKolken