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  1. Report: Trump Will End DACA in 6 Months, to Delight of White Supremacists. If Congress Passes DACA Without Wall Funding, Will Trump Veto? Roger Algase

    Update, September 3, 10:10 pm

    POLITICO and other news outlets report on the evening of Sunday, September 3 that Trump has decided to end the DACA program with a six month grace period to allow Congress to pass its own version, something that Congress has refused to do in the past because of Republican opposition.

    http://www.politico.com/story/2017/0...igrants-242301

    Does the grace period mean that Trump would genuinely support Congressional action to enact DACA into law, or is it only a cynical ploy to try to hold Congress responsible for a decision to end DACA which Trump reportedly made after consulting further with his chief immigration adviser, AG Jeff Sessions?

    Sessions, as is well known, has long been bitterly opposed to most, if not all non-white immigration to the US. Less than 3 years ago, in his January 2015 immigration "Handbook" for Congressional Republicans, Sessions openly praised the same racist, "Nordics" only Johnson Reed immigration act of 1924 that Adolf Hitler also praised some nine decades ago in his infamous manifesto Mein Kampf.

    Richard Spencer, David Duke, and other white supremacists or neo-Nazis are going to be very happy with Trump's decision.


    For more on Sessions' reported role in Trump's decision, see the New York Times September 3 article:

    https://www.nytimes.com/2017/09/03/u...a.html?mcubz=3

    But suppose that Congress, against all expectations, does pass a DACA bill. Will Trump sign it into law, or would he threaten to veto it if the bill does not also contain funding for his Wall of shame, hatred and humiliation against Mexican, Latino and all other non-white immigrants?

    My earlier comments appear below.

    Update, September 1, 10:43 pm:

    A later POLITICO report on September 1 suggests that, rather than make a firm decision on DACA either way, Trump might hold off on a definite resolution pending possible Republican attempts to make a deal with the Democrats to give up their opposition to Trump's border Wall of Shame for America and Humiliation against Mexican, and by extension, all non-white immigrants, in return for a Republican agreement to preserve DACA.

    POLITICO quotes New York Rep. Joe Crowley, Chairman of the Democratic Caucus, as follows, with regard to such a deal:

    "I've said that I won't participate in blackmail and allow President Trump to hold these DACA recipients hostage."

    http://www.politico.com/story/2017/09/01/trump-dreamers-congress-shutdown-debt-242264?lo=ap_c1


    Would an agreement to accept one form of hate (i.e. Trump's border Wall) against minority immigrants in return for the president's agreement not to engage in another form of hate against minority immigrants, i.e. terminating DACA, really be the best way to protect all non-white immigrants against the president's white supremacist immigration agenda?

    Or would standing up against all forms of hatred and prejudice against non-white, non-European immigrants, whether in the form of ending DACA and dashing the hopes of 800,000 innocent young people for a future in America, the only country most of them have ever known on the one hand, or in the form of Trump's border Wall of contempt against the Latin American immigrants he so much despises be more effective and more in keeping with America's core spirit of equality and justice for all people regardless of race, color or religion?

    Update, September 1, 6:13 pm:

    The very latest report as of this writing, in The Guardian, is that Trump will announce his decision on DACA on Tuesday, September 5. Pressure on him from DACA supporters not to terminate the program is reported to be growing, including from Republican leaders. Either way, Trump's decision could be a major milestone in the record of his own administration, and in US immigration history in general. Its effect would almost certainly not be limited to the fate of the almost 800,000 young people directly involved, but would likely have major reverberations throughout the immigration system, including admission of legal immigrants as well as policies affecting unauthorized immigrants in general.

    Earlier reports also state that influential Republican leaders such as House Speaker Paul Ryan and Utah Senator Orrin Hatch are calling on Trump not to end the DACA program, but to give Congress a chance to take action on it instead.

    On the other hand, Trump is also said to be listening to DACA opponents just as AG Jeff Sessions, who is reportedly warning Trump that if he tries to defend DACA, he may suffer a humiliating defeat in court. Based on the scholarly and well-researched law review article cited in my comment below, one has to ask whether Sessions' reported advice in this point is fair, objective or accurate, rather than dictated by his own long-standing anti-immigrant agenda.

    According to these reports, Trump may postpone a decision until this weekend, and is still insisting that he "loves" the DREAMERS and that they are "terrific" people. We may find out soon enough whether or not this means "tough love" (or whether Trump "loves" the Dreamers as much as he loves Sheriff Joe Arpaio).

    See the latest (as of this writing) POLITICO report at

    http://www.politico.com/story/2017/0...42257?lo=ap_a1

    The Guardian's report is at:

    https://www.theguardian.com/us-news/...acebook-letter

    My earlier comment follows:

    Donald Trump is widely expected to announce the end of the DACA program today, Friday, September 1, in a move that would destroy the hopes, futures and careers of 800,000 young people, mostly from Latin America, who were brought to this country as children without any fault of their own and who have no real connection with any other country.

    No one seriously contends that these young people, many of whom are now students or entering professional careers (a few have even become lawyers) pose any danger to the United States. The only reason for destroying their careers and futures in the US (many of them would almost certainly be deported), is to advance the white nationalist goal of ending or drastically reducing non-white immigration to America and taking this country further back on the road toward the overtly racist "nordics"- only immigration act of 1924 which tried to (and succeeded in cutting off almost all immigration from outside northern Europe for the next four decades.

    Much of the media have tried to present Trump's much-publicized agonizing over whether to terminate DACA or not as some sort of epic struggle between his own "better instincts" and his "baser" need to accommodate his own white supremacist supporters or to bolster his image as being "tough on immigration". See, for example, the August 31 Immigration Daily editorial.

    Other commentators are focusing on the legal challenges which would arise in defending DACA in court, in view of the threatened lawsuit right after the Labor Day holiday weekend by 10 Republican state governors, and the fact that Trump's own attorney general, Jeff Sessions (who as a Senator, less than 3 years ago, openly defended the racist 1924 immigration act in his January, 2015 immigration "Handbook" for Congressional Republicans, - as I have frequently pointed out) has reportedly indicated that he would not favor defending DACA in the case of such a lawsuit. and there are unconfirmed suspicions that Sessions may be coordinating opposition.

    See Michael Tan, a Staff Attorney for the ACLU Immigrant Rights Project:

    https://www.aclu.org/blog/immigrants...take-down-daca

    However, with all due respect for the proponents of such views, it is appropriate to ask if the time has not now come to stop making excuses for Donald Trump and his agenda of hostility to immigrants of minority ethnic/religious backgrounds which has been apparent from the day that he first began his presidential campaign.

    This is not a post for political comment, but there cannot be any serious doubt that if Trump wanted to stand up to his white nationalist "base" supporters on this issue he could do so. Didn't he just fire Steve Bannon, his most prominent white nationalist sympathizing White House adviser? (Of course, Bannon was not the only one - Steve Miller is still working for Trump.)

    Trump has also not forgotten to do plenty of favors for his white supremacist supporters - Joe Arpiao has been pardoned, and Trump is threatening to shut down the government, if not (according to speculation) to destroy the entire world economy over the debt limit issue if Congress refuses to provide funding for his border Wall of contempt and humiliation against Mexican and other Latin American immigrants.

    Without going into full detail at this point on the legal issues involved, there is without question a legitimate argument that President Obama was making a valid exercise of administrative discretion when he promulgated the DACA program which Trump has, up to the present time, been continuing, in apparent opposition to the rest of his actions against minority immigrants, and to his great credit.

    It is by no means a forgone conclusion that the threatened lawsuit by the 10 Republican governors would succeed. Arguing that DACA would inevitably be struck down by the federal courts, including the Supreme Court, in the event of a lawsuit before such a lawsuit has even been filed, belongs to the area of political debate, not serious legal discussion.

    For a comprehensive and well-researched legal analysis of DACA's validity as a legitimate exercise of prosecutorial discretion (as opposed to the right wing media campaign to discredit DACA as an "amnesty" designed only as a "magnet" to "attract more illegal aliens" to the US) see the excellent discussion on this subject by a Temple University law student (now an attorney) Xiao Ming Hu, in the article:

    Deferred Action for Childhood Arrivals and Prosecutorial Discretion: Legality, Policy and Foreign Comparison


    Temple International and Comparative Law Journal Vol. 28, No. 1 (2014), pages 27-52)

    https://sites.temple.edu/ticlj/2014/...e-28-number-1/

    Well, what about the fact that Trump's own attorney general, Jeff Sessions, the head of the DOJ, would almost certainly refuse to defend DACA in court? The answer is: who cares?

    Has it been that long since Trump fired another official in charge of the Justice Department, Acting Attorney General Sally Yates, for refusing to defend his Muslim ban in court? If Trump were willing to stand up for DACA in court, what is there to stop him from firing Sessions (whom he recently threatened to fire anyway over the Russia investigation, when Sessions did the right thing by following the law in recusing himself, much to the president's openly expressed chagrin)?

    If DACA is terminated (or "grandfathered" out, as some commentators have suggested might be done instead), there will be only one person responsible to doing this: Donald J. Trump, the Chief Executive of the United States of America. And terminating DACA would only be the latest in a long series of his attacks on minority immigrants as candidate and president, beginning with the day that he began his campaign by demonizing Mexican immigrants, continuing with banning Muslim ones as president, and most recently, with his support for the RAISE act which would drastically cut down in non-European immigration; not to mention, of course, his continuing obsession with the Mexican border Wall of Shame.

    The only surprise would be if Trump somehow shows willingness to make the sympathy he has expressed for DREAMERs a continuing reality rather than just empty words, and can muster the courage and good will to take on the white supremacists with whom he made a Faustian bargain to win the White House with their support.

    Everyone who cares about basic human rights and racial justice in America must hope that DACA will somehow survive in the "Donald Trump Era". None of the reasons that many media commentators are putting forth for its anticipated demise makes any real sense; least of all the totally unjustified assumption that DACA has little or no chance of surviving a federal court challenge.
    ____________________________
    Roger Algase is a New York 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 practice includes both employment and family immigration, and is mainly concentrated in work visas through specialty occupations (H-1B) and extraordinary ability (O-1); and green cards through Labor Certification and through opposite sex or same sex marriage. Roger's email address is
    algaselex@gmail.com

    Updated 09-04-2017 at 10:13 PM by ImmigrationLawBlogs

  2. Another Open Letter to My Friends at DHS and DOJ: After Joe Arpaio, What Now?

    The Joe Arpaio pardon is an affront to anyone concerned about the rule of law. And this includes the lawyers, judges, and adjudicators I know at the Departments of Justice and Homeland Security.

    But before we get to that, we need to talk a bit about "Sheriff Joe." A brief overview of his career as sheriff of Maricopa County, Arizona reveals various misdeeds, including--
    abuse of power; misuse of funds; failure to investigate sex crimes; improper clearance of cases; unlawful enforcement of immigration laws; and election law violations. A Federal court monitor was appointed to oversee his office's operations because of complaints of racial profiling. The U.S. Department of Justice concluded that Arpaio oversaw the worst pattern of racial profiling in U.S. history, and subsequently filed suit against him for unlawful discriminatory police conduct. Arpaio's office paid more than $146 million in fees, settlements, and court awards.

    But all that is not what ultimately led to where we are now. Mr. Arpaio was a defendant in a civil rights lawsuit. The judge ordered him to stop racial profiling, but Mr. Arpaio refused to comply. In a civil contempt proceeding, Mr. Arpaio admitted as much to the Court: "Defendants acknowledge and appreciate that they have violated the Court's orders and that there are consequences for these violations." In this particular case, the "consequences" proposed by Mr. Arpaio were for the tax payers of Maricopa County to foot the bill for a victim compensation fund. That didn't pan out, and Mr. Arpaio was charged with criminal contempt.

    He was convicted on July 31, 2017. The presiding judge wrote that Mr. Arpaio had "willfully violated an order of the court" by failing "to ensure his subordinates' compliance and by directing them to continue to detain persons for whom no criminal charges could be filed." Sentencing was scheduled for October.

    Then last week, on a Friday night in the midst of a hurricane, President Trump issued a pardon for the criminal contempt and any other charges that might arise out of the same litigation. In an explanatory statement, the White House called Mr. Arpaio a "worthy candidate" who "protect[ed] the public from the scourges of crime and illegal immigration."

    So what does this mean? Of course, it means that Joe Arpaio won't be going to jail. But on a more fundamental level, what does it mean for the rule of law? And what does it mean for those who enforce the law?

    It seems to me that the clear signal sent by this pardon is that violating the law--by racial profiling or other means--is acceptable in order to rid our country of the "scourge" of illegal immigration. The ends justify the means.

    Such an approach is antithetical to any society that values law and order, and that opposes tyranny. Those sworn to protect our nation's laws must hold themselves to the highest standards. It is not for them to decide which laws to follow based on their subjective beliefs about right and wrong. They must follow the law. And when they don't, they must be held accountable. When regular citizens fail to obey the law, it is anarchy. When law enforcement officers fail to obey the law, it is fascism.

    And so the Joe Arpaio pardon is an endorsement of fascism. Whether you think all "illegals" should be rounded up and deported, or whether you think they should all be granted green cards makes no difference to this analysis. Fascism is fascism and law is law.
    So what does all this mean for attorneys, judges, adjudicators, and others at DOJ and DHS?

    It seems to me that you have a duty to uphold the law, regardless of whether the President is willing to tolerate or even encourage you to violate it in the service of his goals. That's pretty basic, and we've seen examples of government officials following the law even when the President discouraged it (see Jeff Sessions and recusal).

    But I think there is something more you can do. You can err on the side of non-citizens. Especially these days, the deck is stacked against aliens seeking immigration benefits. Simple mistakes on forms can lead to severe consequences. Minor criminal convictions can lead to banishment for life. The over-broad terrorism bar treats victims of terror like terrorists. Prosecutorial discretion is gone. The denial rate for asylum cases is on the rise. We are seeing more and more requests for evidence, and the wait time for many immigration benefits is getting longer. Not to mention the travel ban, increased use of detention, the backlog, etc., etc. In other words, the situation on the immigrant-side of the fence ain't easy.

    But if you are an adjudicator or an attorney or a judge with DHS or DOJ, you have some power to mitigate these difficulties. You have some flexibility in your decision-making. You are in a position to blunt some of the worst excesses of the Trump Administration. You can help act as a counter-balance when the President encourages law enforcement to push the boundaries of the law, as he did with the Joe Arpaio pardon.

    Immigration and asylum laws are not nearly as harsh as the Trump Administration would have us believe. But the President is trying to use immigration law and procedure in a way that blocks people from coming here, or that deports those who are here. It is up to the people on the front line of that effort to protect the rule of law. Judges, adjudicators, and attorneys have the legal authority to grant cases, and in the face of the Trump Administration's attack on the rule of law, they should continue to do so. The lives of many immigrants--and our country's fealty to the rule of law--depend on it.

    Originally posted on the Asylumist: www.Asylumist.com.
    Tags: arpaio, trump Add / Edit Tags
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