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  1. Muslim Civil Rights Lawyer: Supreme Ct. Entry Ban Decision Promotes Discrimination Against All Muslims. Are Rights of Any Americans Safe? Roger Algase

    Update: June 28, 5:54 pm:

    Some legal analysts have suggested that the Trump administration can easily get around the Supreme Court's exception to its decision to uphold Trump's Muslim ban order until the Court's October term begins. The way to do this, according to this argument, would be for the administration to issue consular "guidance" memos which would in effect instruct consular officers to refuse visas to citizens of the affected six countries, even when the applicants clearly meet the standard of having bona fide ties with the US in order to qualify for the exception to the ban as enunciated by the Supreme Court in its June 26 decision.

    Then, the administration could rely on the doctrine of non-reviewability of consular officer visa decisions, set forth by the Supreme Court in Kerry v. Din (2015).

    This argument is set forth, for example, by Santa Clara University Law Professor Pratheepan Gulasekaram as quoted in a June 28 Slate article

    How Trump can get his Muslim Ban


    The flaw in this argument is that, under Kerry v. Din, the doctrine of non-reviewability of consular visa denial by the courts is not absolute. It is limited to cases in which there is no "affirmative showing of bad faith" - a standard set forth by Justice Kennedy writing for the plurality in that case.

    Admittedly, this is a standard which is not easy to meet. Very possibly, Justice Kennedy may not have contemplated that the behavior of any rational president or administration in connection with refusing admittance to the US to any immigrants or classes of immigrants would be egregious enough to put this standard into play.

    But that was before Donald Trump became the president.

    My original comment appears below.

    In the June 27 issue of Immigration Daily, I wrote that the Supreme Court had given Donald Trump a "Pyrrhic" victory, or at best (from the president's standpoint) a very incomplete one, by upholding Trump's six almost 100 percent Muslim country entry ban (hereinafter "Muslim ban" - not some vapid and meaningless euphemism such as "travel ban", whatever that means) for 90 days (which Trump will without the slightest possible doubt seek to extend for as long as he can - either in its current form or under the guise of his latest "Extreme Vetting" mantra - whatever that means), but with a very significant loophole.

    The loophole, as I explained in my comment and as numerous other writers have also pointed out) was that anyone from the six banned countries with bona fide ties to the US will be exempt from the ban entirely.

    Since the Supreme Court gave at least some specific guidance as to what it meant by the term bona fide ties to the US, it would appear from its decision that a substantial percentage of the people from the six countries who are able to receive visas from US consular posts in the first place will be eligible to enter the US without being affected by the ban. (My guess was 95 percent - perhaps overly optimistic from the point of view of the affected citizens of the six almost 100 per cert Muslim countries).

    This is because, few if any applicants in the six targeted countries would normally be able to have their visa applications approved unless they had substantial ties to the US in the first place.

    Therefore, as I argued in my June 27 comment (which was posted on ilw.com on June 26 - see below), leaving the president's ban in place for people who do not have strong ties to the US would arguably not affect very many people, since very few of those people would have been able to get visas even without the ban.

    However, no matter how much the president may have been disappointed - or "angered" - as he reportedly was by a lower court decision blocking his ban order - see: http://www.cnn.com/TRANSCRIPTS/1703/15/cnnt.02.html - by the thought of his administration's still being required by the Supreme Court decision to accept hundreds, or thousands, of people belonging to a group of people whom the president has made clear on numerous occasions that he would prefer not to admit the United States - a gens invisum (despised group of people) to use Virgil's famous phrase about Trojan refugees in Book 1 of the Aeneid - namely people who belong to the Muslim religion - there is still one extremely uncomfortable reality coming from that decision.

    That reality is that even though the Court has carved out a significant loophole to its order upholding the ban decision, it still upheld the president's religious ban in principle. My above June 27 comment did not fully deal with this issue.

    However, a Muslim civil rights lawyer and Harvard Law School graduate, Amir H. Ali, writing in The Guardian on June 27, has focused on the critically important underlying message that Trump conveyed to America and the world by issuing the Muslim ban orders in the first place, and which the Supreme Court confirmed by upholding the ban, even in part.

    https://www.theguardian.com/commenti...discrimination

    What is this underlying message in the Supreme Court's June 26 decision upholding the president's Muslim ban in part? It is a very simple one: that it is OK for the U.S. government to discriminate against Muslims because of their religion.

    This means not just Muslims from the six (originally seven targeted countries. It means all Muslims.

    And this leads to another fundamental question: If a country adopts a policy restricting the freedom of one group of people to exercise their basic rights, including freedom of religion, how secure will the basic rights of all other citizens of that country be, even if they are not members of the disfavored group (in this case, Muslims)?

    Ali writes, in his above article:

    "To understand the impact of the supreme court's decision, it is important to appreciate what it is like to be Muslim in the U.S. today: that your religion exposes to to the all-but-accepted-reality of routine deprivations of liberty and privacy each time you present yourself at the border.

    This discrimination (whether subconscious or otherwise is an unwritten condition of your apparent offense of Flying While Muslim."


    Ali continues:

    "And it [the fear of discriminatory treatment at the US border] is rational even when the strength of your connection to the U.S. means that you cannot lawfully be denied entry. There are myriad examples of American Muslims - people who have an unqualified and irrevocable right to enter the US - being met at the border by practices such as discriminatory religious questioning, invasive cellphone searches and even temporary denial of entry."

    And he concludes, in a stinging but well-justified rebuke to the Supreme Court in its June 26 decision:

    "This point appeared to be lost on the court, which seemed to believe that affording discretion to deny entry to those people who fail its test will have no impact on the people who will pass the test. That reasoning reflects a fundamental misapprehension of what it is like to arrive in the US as a Muslim today.

    To be sure, the court's decision is far more tolerable than reinstating the travel ban in full, as the three dissenting judges would have done. But when carving lines into Trump's travel ban, the court may well have unleashed some of the vitriol that lies directly beneath."


    The last sentence above is the key. There cannot be the slightest rational doubt, based on the president's own statements and actions, both before and after taking office as president that his Muslim country entry ban orders (a much more accurate description than "travel ban". as I have mentioned above) were based on vitriol against Muslims purely because of their religion.

    The 4th Circuit majority, a little more politely perhaps, referred to this as "animus" instead, but using a Latin word instead of an English one does not change the point.

    During the presidential campaign, then candidate Trump infamously said (in March 2016): "I think Islam hates us".

    http://www.cnn.com/2016/03/09/politi...-us/index.html

    Can anyone seriously argue that Trump's Muslim ban orders (after becoming the second president in this century to be elected after losing the popular vote) were intended to accomplish any other purpose than to "return the compliment"?

    And is that March 2016 statement, which was obviously the real motivation for Trump's Muslim ban orders, including the original, even more sweeping seven country ban which Trump now states that he regrets having "watered down", in essence any different from another statement, about a different but well known religious group made some 80 years ago - a statement that will be infamous as long as human history endures so as to need no translation? I refer to Joseph Goebbels, writing in support of Adolf Hitler's persecution of the Jews in the 1930's:

    "Die Juden sind unser Unglueck!"

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 06-28-2017 at 05:57 PM by ImmigrationLawBlogs

  2. Return of the Travel Ban

    Days after President Trump took office, he moved to implement one of his campaign promises: To bar Muslims, refugees, and others from coming to the United States. Courts were not amused, and blocked significant portions of the President's executive orders (thanks largely to the brilliant work of lawyers at the ACLU and at several states attorneys offices). The President tried again, with a new, more limited executive order ("EO"). The new EO was also severely limited by the courts.


    You'd think a bunch of people in burkas would be a bit more sympathetic to Muslims.

    But now, the Supreme Court has spoken, and the EO is back, at least in part. So what's the story? Here is a nice summary (with some comments by yours truly) of where we are now, courtesy of Aaron Reichlin-Melnick at the American Immigration Council (and if you want to do something to help resist the travel ban, consider donating to the AIC--they are a terrific organization that does yeoman's work in all areas of the immigration field):

    "[The] the Court ruled that the government can only enforce the travel ban against foreign nationals who do not have 'a credible claim of a bona fide relationship with a person or entity in the United States.'

    "What this means is that individuals from the six countries [Iran, Libya, Somalia, Sudan, Syria, and Yemen] will be permitted to enter the United States if they have a 'close familial relationship' with someone already here or if they have a 'formal, documented' relationship with an American entity formed 'in the ordinary course' of business. However, the Court said that such relationships cannot be established for the purpose of avoiding the travel ban. The government will likely begin applying the travel ban in the limited fashion permitted by the Supreme Court on June 29, 2017.

    "Who is likely to be allowed to enter the United States?


    • Individuals who have valid immigrant or non-immigrant visas issued on or before June 26, 2017: These individuals are not included in the travel ban [However, it seems to me that the decision leaves open the possibility of a new EO where such people are banned, and so I am concerned about that as well].
    • Individuals with visas coming to live or visit with family members: The Courtís order is clear that individuals who 'wish [] to enter the United States to live with or visit a family member' have close familial relationships. The Court used both a spouse and a mother-in-law as examples of qualifying relationships, but it is unclear whether more distant relatives would qualify.
    • Students who have been admitted to a U.S. university, workers who have accepted offers of employment with U.S. companies, and lecturers invited to address an American audience: The Court provided these three examples of individuals who have credible claims of a bona fide relationship to an American entity.
    • Other types of business travelers: It is unclear whether individuals with employment-based visas that do not require a petitioning employer will be able to demonstrate the requisite relationship with a U.S. entity.
    • Refugees: Most refugees processed overseas have family or other connections to the United States including with refugee resettlement agencies [I read this a bit more pessimistically--I do not know whether a pre-existing relationship with a resettlement agency is enough to avoid the ban]. The Court ruled that such individuals may not be excluded even if the 50,000 [person] cap on refugees has been reached or exceeded.


    "Who may have trouble entering the United States?


    • Individuals who form bona fide relationships with individuals or entities in the United States after June 26, 2017: The Courtís decision is not clear on whether it is prospective or retrospective only. Individuals who form such relationships to avoid the travel ban are barred from entering.
    • Tourists: Nationals of the designated countries who are not planning to visit family members in the United States and who are coming for other reasons (including sight-seeing) may be barred from entering [I also read this more pessimistically--it seems to me that anyone from a banned country who does not merit an exception as discussed in the decision will be denied a visa, including people coming to the U.S. for business, pleasure or medical treatment]."


    As I read the decision and the EO, asylum seekers who are already in the United States, as well as people who have asylum or have a green card based on asylum, are not blocked from traveling and re-entering the country. They are also not blocked from receiving additional immigration benefits (like asylum, a green card, a work permit, travel documents or naturalization). However, the proof will be in the implementation--how the Department of Homeland Security ("DHS") interprets and applies the Supreme Court decision in actual, real-life cases.

    In that regard, I agree with Justice Thomas, who "fear[s] that the Court's remedy will prove unworkable" and will invite a "flood of litigation." Who is a qualifying relative for purposes of this decision? Must that person be a U.S. citizen? Or can the person be a resident or an asylee (as in a refugee/asylee following-to-join petition, form I-730)? Could the qualifying relative simply be someone here on a work visa or a visitor visa? What if the person is here illegally? And what is a business relationship, and how do we know whether it is bona fide or created solely for the purpose of subverting the EO?

    In short, while the Supreme Court decision is reasonably clear for some aliens, it leaves large gray areas that will require interpretation, meaning more litigation. Such litigation is expensive and time consuming, and so the Court's decision is likely to leave some people who might qualify to come here stranded, depending on how DHS implements the EO, and depending on whether they can get legal help. Overall, that's not a great situation to be in.

    Finally, yesterday's decision perhaps telegraphs where the Justices will come down on the merits of the EO when they look at the case this fall (the Court's decision relates only to whether to stop implementation of the EO pending a decision on the merits). Three Justices (Thomas, Alito, and Gorsuch) seem likely to allow a broader version of the ban to go forward. Given what we see in this decision, it may be that the other Justices are more skeptical of the ban and will limited it in some ways (and with luck, if the Trump Administration fears that the Court will limit the ban, it may just declare victory and allow the EO to expire, as originally intended).

    All this remains to be seen, but for now, anyone from a banned country should pay attention to how the EO is implemented in the coming days, and perhaps avoid traveling outside the U.S. until we know more.

    Originally posted on the Asylumist: www.Asylumist.com.
  3. USCIS Introduces "Extreme Vetting" in New I-485 Adjustment of Status Form. Welcome to the United States of Ideological Purity. By Roger Algase

    Up to now, I-485 applicants who are successful in their applications to adjust status to permanent resident (green card) status have been receiving an I-797 approval notice with a wonderful greeting at the top stating:

    WELCOME TO THE UNITED STATES OF AMERICA

    Now, immigrants who are filing I-485 adjustment (AOS) applications will no longer have to wait until this form is approved in order to receive greetings of a very different kind from the US Department of Homeland Security.

    As soon as they read the new I-485 form which was introduced by USCIS on June 26, they will be welcomed into Donald Trump's promised Brave New World of "Extreme Vetting".

    While the new I-485 form was introduced with a USCIS announcement containing all the usual phraseology about how the form is more convenient, clear, user friendly, etc., which we are used to seeing every time a new, longer, more complex and convoluted immigration form is rolled out, the real difference between the new form and the current edition dated January 17, 2017 (only 3 days before the new president took office) is in the expanded "security" questions.

    While the new form, of course, does not in fact contain such a notice, it would not be inappropriate if it did contain one such as, say, the following:

    WELCOME TO THE UNITED STATES OF EXTREME VETTING

    To illustrate, the previous January 17, 2017 I-485 form (which will still be valid during a 90-day grace period) is 6 pages long and contains a total of 18 criminal history and security questions. The new form, in contrast, contains 80 (the real number, not a typo) criminal history and security questions. Moreover, many of these 80 questions are broken down into several parts, so that the total number of actual questions adds up to closer to 100 (or even more - I have not yet made an exact count). (Of course, the previous 18 questions also included a number of a's, b's c's, etc. so the actual total number of questions was higher than just 18.)

    This is not to say that there is anything wrong with big numbers per se in the sheer amount of questions asked. The immigration laws are extremely complex, and there are dozens of different grounds for being inadmissible to the United States.

    But the warning signs are in the vague, catch-all nature of some of the questions, which are not related to any specific provision of law, and seem to be nothing more than excuses to deny a green card to anyone whom our nation's 45th president, or his delegated immigration officials, decide that they do not want to remain in the United States for any reason they choose.

    Here are two examples:

    "Do you intend to:

    46.d Engage in any activity that could endanger the welfare, safety or security of the United States?

    47. Are you
    engaged in or, upon your entry into the United States, do you intend to engage in any activity that could have serious adverse foreign policy consequences for the United States?"

    What are these two questions supposed to mean? What immigration or other law defines the extraordinarily broad and vague term "welfare, safety or security of the United States"?

    What on earth could the even broader and vaguer phrase: "potentially adverse foreign policy consequences for the United States" possibly refer to?

    With regard to the first of the above two questions, some members of the Trump administration, such as Attorney General Jeff Sessions and Senior Presidential adviser Stephen Bannon, are on record as stating that all immigration in its present form, whether permitted by law or otherwise, is detrimental to the welfare of the United States.

    Trump himself, in his August 31, 2016 immigration address, called for much lower levels of legal immigration in general. Under this theory, if the president thinks that America already has too many immigrants (as he has claimed) any immigrant who applies for a green card might be "endangering" the "welfare" of the United States.

    This may sound like an extreme example, but consider some of the people whom Trump has, during both his campaign and after assuming the office of president has attacked as supposedly endangering the "safety and security of the United States". Here is a partial and incomplete list:

    1) President Barack Obama,
    2) Presidential candidate (and popular vote winner) Hillary Clinton,
    3) Any federal judge who opposed the president's Muslim ban executive orders,
    4) Members of the Democratic party,
    5) Anyone else who opposes or disagrees with the current president on any issue.

    The above list is not given in order to argue political points. It is only meant to illustrate the point that the above phrase can mean anything an immigration examiner wants it to mean - very possibly leading to long delays or even denials of green card applications for totally arbitrary reasons.

    This is even more true when we get to the phrase "potentially serious adverse foreign policy consequences for the United States."

    Who makes that decision?

    Were there potentially serious adverse foreign policy consequences for the U.S when the president pulled out of the Paris Climate Change Accords? When he (reportedly) pushed and shoved the Prime Minister of a much smaller country (Montenegro)?

    When the president criticized NATO allies as "deadbeats", while falling to impose stronger sanctions on Russia's dictator Vladimir Putin, alleged connections to whom on the part of Trump or his top officials are now under investigation by an independent counsel?

    Again the purpose here is not to argue about political questions. It is only to show that certain questions in the new I-485 AOS application form appear to be more concerned with imposing arbitrary standards or ideological purity on green applicants that go far beyond anything sanctioned or contemplated by our immigration laws - or by the norms of any democracy.

    Roger Algase
    Attorney at Law


    Updated 06-27-2017 at 02:29 PM by ImmigrationLawBlogs

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