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  1. ACLU Also Explains How Trump's Retweets of Anti-Muslim Hate Videos Will Undermine DOJ's Muslim Ban Defense Strategy in Court. Roger Algase

    This comment is a follow-up to my November 29 comment (appearing in the November 30 issue of Immigration Daily) about Trump's retweeting of inflammatory videos posted by far right anti-Muslim extremist in the UK purporting to show "Muslims" engaging in despicable acts of violence. In my comment, I suggested that Trump's retweeting of this openly Islamophobic material could doom his Muslim ban defense strategy in various federal courts (and the Supreme Court, if the case reaches that Court again).

    The reason, as I suggested, is that by retweeting these hate videos, (which bring back uncomfortable memories of similar material that the Nazi propaganda machine directed against the Jews, not to mention home-grown anti-Semitic American hate propaganda of a century ago, such as the infamous "Protocols of the Learned Elders of Zion" disseminated by another famous wealthy tycoon of that era, Henry Ford), Trump demolished whatever may have been left of his court arguments that the Muslim ban orders were motivated by national security rather than pure bigotry. My November 29 comment is available at:

    A November 30 article by ACLU communications director Amrit Cheng supports the above contention which I outlined in my own article. See:

    Trump's Lawyers Say the Muslim Ban Has No Bias, But His Tweets Show Otherwise

    Cheng writes:

    "Trump's prejudice against Muslims reveals itself at every turn - because he is the one revealing it. He showed his bias with Wednesday's tweets, with pronouncements like 'Islam hates us' and with every version of the Muslim ban...

    Not surprisingly, courts have repeatedly recognized that the president's Muslim bans are inextricably tied to the president's flagrant prejudice and his repeated promises to ban Muslims from coming to the United States."

    Cheng also writes:

    "Yesterday's tweets can be added to Trump's long list of anti-Muslim statements and actions..."

    And as I pointed out in my November 30 Immigration Daily comment, the tweets completely give the lie to the claim by his defenders that Trump's history of anti-Muslim campaign statements took place "too long ago" to be used against him in the ongoing Muslim ban litigation, which the ACLU will continue to pursue before the 4th Circuit on December 8, according to Cheng's article.

    Trump's anti-Muslim campaign statements, to be sure, took place between one and two years ago, which itself hardly qualifies as ancient history.

    But his vicious Islamophobic retweets took place on November 29, 2017 ten months after his first Muslim ban executive order. And just in case any of Trump's defenders may have happened to overlook this little detail, on November 29, 2017, Donald Trump was no longer a presidential candidate, who might arguably have been entitled to some leeway in his statements while seeking office (at least according to his supporters' theory of presidential campaigns).

    He was the president of the United States and had been so for close to a year.

    And as Cheng aptly puts it in his article:

    "We should all be outraged that the president of the United States is promoting and endorsing videos that are plainly designed to fan the flames of anti-Muslim hatred. The decision to do that is reckless, dangerous and contrary to fundamental American values that protect all of us from religious discrimination."

    And this is the ultimate point about the entire controversy ovr the Muslim ban executive orders and Trump's history of other bigoted statements and actions against Muslim immigrants (and threats against Muslim Americans, we also must not forget).

    It is not only the rights of Muslims, or of immigrants that are at stake. It is also the fundamental rights and freedoms of all Americans, regardless of religion, that Trump is now putting in danger by his campaign of fear, hatred and prejudice against Muslims and other non-white, non-European immigrants.

    Roger Algase
    Attorney at Law

    Updated 12-01-2017 at 04:03 AM by ImmigrationLawBlogs

  2. Will Trump's Shocking Retweets of Extremist Anti-Muslim Hate Videos Spell Legal Doom for His Latest Muslim Ban Executive Order? Roger Algase

    Update, November 30, 5:13 pm

    For the latest reaction to Trump's anti-Muslim tweets, see, The Guardian, November 30:

    Far right hatemongers cheer Trump's Twitter endorsement

    My original comment follows:

    As both the US and the UK are reeling from the shock of Trump's retweets of vicious proto-fascist anti-Muslim hate videos originally posted by Jayda Fransen, who has a reputation for anti-Muslim extremism in the UK, one question immediately arises: can Trump's latest Muslim ban order survive this latest expression of the president's venomous animosity against the entire world Muslim community, not just those who may be suspected of terrorist sympathies?

    I will not even describe the vile content of the videos, which cannot help but recall the unspeakable attacks against Jews as being violent criminals and degenerates promulgated by Julius Streicher in his infamous publication Der Stuermer, and which ultimately led to his execution as a Nazi war criminal.

    Details of the videos, and of the horrified reaction in both the UK and the US to the fact that a president of the United States was actually capable of spreading such material can be found at:

    and at:

    However, the concern raised by Trump's spreading of this material in defiance of the conscience of the world is only part of the story. There is also the question of whether there will be any legal consequences in the still pending dispute over Trump's latest Muslim ban executive order.

    As everyone who has been following the Muslim ban litigation will have no difficulty in remembering, the central issue in the various lawsuits involving the three different versions of Trump's bans on entry to the US by citizens of various overwhelmingly Muslim countries (plus, in the latest version, a couple of non-Muslim ones thrown in for obvious cosmetic purposes) has been whether the ban is motivated by genuine national security reasons, as Trump and his Department of Justice have argued; or whether, as its opponents claim and an overwhelming majority of the 4th Circuit judges sitting en banc ruled regarding the second version of the Muslim entry ban ban, it was motivated by unconstitutional "animus" against Muslims and their religion in general affecting the rights of American citizens.

    Aside from the DOJ's argument that (in effect) INA Section 212(f) gives the president the power of a dictator or an emperor to ban any immigrants he wishes from our shores (and airports) for any reason he chooses, an argument which is untenable when the constitutional rights of US citizens to freedom of religion are affected; the issue whether the president has a legitimate national security justification for the ban has come down to a question of fact concerning Trump's actual motivations in issuing the ban orders, rather than just the theoretical pretexts set forth in the ban orders themselves (such as that Syria, for example, was placed on a terror sponsorship list almost 40 years ago)!

    In arguing that Trump's real motivation for the ban orders (which he has since criticized himself as being too weak and "politically correct") was hatred of and prejudice against Muslims as a religious group, not genuine national security concerns, opponents of the ban cited a host of Trump's campaign statements, such as, to give only one example out of many: "Islam hates us".

    In opposition to this argument, the Muslim ban's defenders argued that campaign statements were irrelevant; they were too far back in the past; this would open the door to using something that a president might have said as a high school student in order to overturn future executive orders, etc., etc.

    In other words, based on this time-worn strategy (going back to the time of Aristotle) of reductio ad absurdum, (he eis to adunaton apagoge in ancient Greek), the Muslim ban's defenders were asking the federal courts to blind themselves to the obvious reality that Trump had made hatred of Muslims and their religion in general, not just the need to protect against unquestionably dangerous terrorist groups such as ISIS, a centerpiece of his campaign.

    However, the 4th and 9th Circuits, as well as various federal district courts, refused to put on the blinders or ignore the reality staring them in the face, and the Supreme Court essentially punted on this entire issue.

    Chief Judge Roger L. Gregory, writing for a 10-3 majority of the full 4th Circuit court on May 25, 2017 in IRAP v. Trump, stated, in words which deserve to be forever engraved in America's legal history as a nation of freedom, democracy and equal justice for all:

    "When the government chooses sides on religious issues, the 'inevitable result' is 'hatred, disrespect and even contempt' toward those who fall on the wrong side of the line. [Citation omitted.] Improper government involvement with religion 'tends to destroy government and to degrade religion' id, encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group."

    For a summary of and link to the full decision, see:

    If the above is true of an executive order which at least pretended to be based on rational and objective national security considerations, even if these, as the 4th Circuit and other federal courts also determined, were essentially nothing but window dressing; it is even more true when the holder of the highest office in our nation deliberately publicizes patently false and vicious material, based on nothing but pure hatred, against a particular religion.

    Now, by retweeting the vile expressions of anti-Muslim hatred posted by an anti-Muslim extremist who has herself been convicted of anti-Muslim violence according to the above news reports, Trump has totally destroyed any possible argument that his own previous inflammatory anti-Muslim statements as a candidate should be disregarded as explaining the real reasons for his Muslim ban orders.

    The Supreme Court, and various lower federal courts following the Supreme Court's decision, have, on a temporary basis, allowed some parts of Trump's latest Muslim ban order to stand (the first two orders now having been rescinded by the administration itself).

    All of these courts should now, on their own motion, put the ban cases back on their calendars and, on the basis of this shocking new and unassailable evidence of Trump's obviously deep-seated personal "animus" against all Muslims, not just terrorists, they should strike down Trump's latest Muslim ban in toto, every single word of it, from alpha to omega - beginning to the end.

    Since the following is a political issue, rather than a legal one, I will not go into the question of how much longer Congress can continue in good conscience to avoid beginning impeachment proceedings against a president whose ongoing expressions of bigotry against a major world religion which some 2 or 3 million peaceful, law abiding and patriotic US citizens also belong to raise increasingly serious questions, not just about the legality of his immigration policies, but about his fitness for the highest office in the land.

    Roger Algase
    Attorney at Law

    Updated 11-30-2017 at 04:14 PM by ImmigrationLawBlogs


    by , 11-29-2017 at 10:21 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    NVC and Consular Processing green card processing times could speed up in 2018 due to an unintended consequence of the Trump administration’s new requirement that all I-485, Adjustment of Status candidates must now undergo a green card interview.

    Why? The USCIS will take longer to process Adjustments of Status in 2018 because of the new interview requirement. Because of the elongated I-485 processing times, USCIS will be able to process fewer green card approvals in 2018. As a result, more green card numbers will spill over into Consular Process queue.

    We often see this phenomenon in the summer months, as we approach the end of a fiscal year. The DOS accelerates the Visa Bulletin in order to ensure that it uses the full allotment of employment-based visa numbers. We explained this phenomenon in a 2016 MU Law FAQ.

    Unsurprisingly, Charlie Oppenheim, the DOS’ guru on immigrant visa number allocation, recognized that the new I-485 interview rule may delay I-485 green cards during his October 2017 AILA “Check In With Charlie”.

    MEMBER QUESTION #1: When does USCIS request and allocate a visa number to an individual case?

    ANSWER #1: Per the agreed upon policy, USCIS will only request an immigrant visa number once all required processing is 100% complete, including conducting any required interview, receipt of a complete medical exam, all required clearances, etc.

    MEMBER QUESTION #2: Could you please confirm that a visa number that gets allocated to each applicant who has successfully passed the interview should be preserved for that applicant unless the applicant becomes ineligible for permanent residence?

    ANSWER #2: With regard to USCIS, though this is relatively rare, there are occasions in which USCIS requests a number, but before the adjustment of status application is fully processed, subsequent derogatory information comes to the officer’s attention which impacts eligibility. As another example, USCIS recently sent RFEs out on numerous EB-3 India cases which had been preadjudicated in anticipation that the final action date for this category would advance during August and September. Visa numbers were provided for those cases with the expectation that the applicants would respond to the RFEs in time to be approved before the end of the fiscal year. Unfortunately, hundreds of individuals did not respond in a timely manner, and USCIS determined that it would be unable to complete adjudication of those cases prior to September 30, 2017. Those cases were returned to “pending demand” status, and the visa numbers for those cases became available to other cases within FY 2017. USCIS was provided with a new number for each case once the requested evidence was received and successfully processed. As a result of new visa number requests for several hundred of these cases, the final action date for EB-3 India is not currently advancing. For consular processing cases, a visa number is allocated to a consular post for use during the month in which the visa applicant is originally scheduled for a visa interview. If the visa is not used during that month (i.e. the case is placed in administrative processing), the number is returned to the Visa Office at the end of the month.


    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at and You can also visit us on Facebook, Twitter and LinknedIn.
  4. Asylum for People with TPS

    In the last few weeks, the Trump Administration has moved to end Temporary Protected Status ("TPS") for Nicaraguans and Haitians, and we can expect TPS programs for other countries to end as well. There are about 321,000 people with TPS in the U.S. Most (195,000) are from El Salvador. There are about 2,500 Nicaraguans with TPS and 57,000 Haitians.

    Nicaraguan TPS Holders: One more year to party like it's 1999.

    The decision for Nicaraguan TPS came on November 6, 2017, though USCIS delayed the effective end-date of the program for 12 months "to allow for an orderly transition before the designation terminates on January 5, 2019." Nicaraguan TPS went into effect in 1999, after Hurricane Mitch devastated the region.

    The Department of Homeland Security ("DHS") announced an end to the Haitian TPS program on November 20--

    To allow for an orderly transition, the effective date of the termination of TPS for Haiti will be delayed 18 months. This will provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. It will also provide time for Haiti to prepare for the return and reintegration of their citizens.... Haitians with TPS will be required to reapply for Employment Authorization Documents in order to legally work in the United States until the end of the respective termination or extension periods.

    USCIS also signaled the likely end of TPS for Honduras, but delayed the decision until later. "As a result of the inability to make a determination, the TPS designation for Honduras will be automatically extended for six months from the current January 5, 2018 date of expiration to the new expiration date of July 5, 2018."

    Given these changes, the fate of the remaining TPS beneficiaries is uncertain. "Recognizing the difficulty facing citizens of Nicaragua – and potentially citizens of other countries – who have received TPS designation for close to two decades," Acting DHS Secretary Elaine Duke called on Congress to "enact a permanent solution for this inherently temporary program." The idea that Congress will act to protect TPS beneficiaries seems unlikely, at best.

    So if you have TPS and you are concerned about the end of the program, what can you do?

    People losing TPS status potentially have a number of options, such as claims to U.S. citizenship, Cancellation of Removal, Adjustment of Status based on a family relationship or a job, a residency applications based on being a victim of a crime or human trafficking. Talk to a lawyer to review your specific situation and evaluate your eligibility (if you cannot afford a lawyer, there might be free services available to you).

    For many TPS recipients, however, the only viable option may be asylum. To win asylum, an applicant must demonstrate that she faces a well-founded fear of persecution on account of her race, religion, nationality, political opinion or particular social group. In other words, to win an asylum case, you need to show that someone wants to harm you for one of these reasons. If you fear return because your country is generally crime-ridden or war-torn, that is probably not enough to win an asylum case. You need to show a specific threat based on a protected ground (I’ve written in more detail about this issue here).

    Most of the “protected grounds” are pretty obvious. If someone in your country wants to harm you because they do not like your religion or race or political opinion, that is easy to understand. But what is a “particular social group”? The law defining particular social group or PSG is complex, and different courts have reached different conclusions about what constitutes a PSG. For purposes of this blog post, it is easier to give some examples of PSGs, and then if you think you might fall into one of these categories (or something similar), you can talk to a lawyer. Some common PSGs include members of a family or tribal group, LGBT individuals, women victims of FGM (female genital mutilation) or women who fear FGM, and people who are HIV positive. Other groups of people that some courts–but not others–have found to constitute a PSG include members of a profession (doctors, journalists, etc.), former police officers, former gang members, former U.S. embassy workers, street children, people with certain disabilities, people who face domestic violence, union members, witnesses/informants, tattooed youth, perceived wealthy individuals returning from abroad, and “Americanized” people. These last two PSG groups might be of particular interest to TPS recipients.
    Creative lawyers (and asylum applicants) are coming up with new PSGs all the time, but if you can fit your case into a group that is already recognized as a PSG, that certainly increases the likelihood that your case will succeed.

    To win asylum, you also need to show that someone (either the government or someone who the government is unable or unwilling to control) wants to “persecute” you on account of a protected ground. You will be shocked to know that the term “persecution” is not clearly defined by the law, and different courts have come up with different–and inconsistent–definitions. Persecution is usually physical harm, but it could be mental harm or even economic harm. An aggregation of different harmful events can constitute persecution.

    In addition to all this, an asylum applicant must show that he filed for asylum within one year of entering the United States or that he meets an exception to this rule. I expect that this will be a particular issue for TPS recipients, since most have been here for years. If you have not filed within a year of entry and you do not meet an exception to the one-year rule, then you are not eligible for asylum. You may still qualify for other relief, which is similar to asylum but not as good: Withholding of Removal and Torture Convention relief.

    One piece of good news is that TPS is considered "extraordinary circumstances" excusing the one-year asylum filing deadline. See 8 C.F.R. § 208.4(a)(5)(iv) ("The applicant maintained Temporary Protected Status... until a reasonable period before the filing of the asylum application."). This means that it is probably important to apply for asylum before your TPS expires. Whether people who were in the U.S. unlawfully before they received TPS can meet an exception to the one-year rule, I am not sure, but for people in this situation who fear return to their country, it is certainly worth exploring.

    Another possible exception to the one-year rule is “changed circumstances.” Maybe it was safe for you in your country, but then something changed, and now it is unsafe. If that happens, you need to file within a “reasonable time” after the change–hopefully, within a month or two. If you wait too long after the change, you will not meet this exception to the one-year rule.

    For TPS recipients, asylum may be a last-ditch effort to remain in the U.S., and it may be difficult to win such a case. However, there are some advantages to seeking asylum. First, despite a crackdown on non-citizens, the Trump Administration has not moved to eliminate asylum. Such a move would be very difficult anyway, since asylum is written into the law (based on a treaty signed by the United States in 1968) and cannot be eliminated without Congressional action. So asylum should remain an option for the foreseeable future. Second, 150 days after you file for asylum, you can apply for a work permit. The work permit is valid for two years, and is renewable for the duration of the asylum case. Finally, the asylum process is slow. Normally, asylum delays are horrible for applicants (and for their attorneys), but if you are trying to delay your deportation until a new Administration comes along, asylum might do the trick.

    If you have TPS, it is important to start considering your options now. Talk to a lawyer or a non-profit organization about your situation to see what you can do. Since we can't expect much (besides trouble) from the government, non-citizens must use the tools at their disposal to protect themselves. Asylum is one such tool.

    Originally posted on the Asylumist:
    Tags: asylum, tps Add / Edit Tags
  5. What is Unfair Documentary Practices?

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    In yesterday’s blog,, I discussed Washington Potato Company reaching a settlement agreement with the Immigrant and Employee Rights Section (IER) of the Justice Department related to its unfair documentary practices of requesting work-authorized non-U.S. citizens to present specific documents to confirm their status, while not subjecting U.S. citizens to such requests.

    In today’s blog, I will discuss more about unfair documentary practices. Unfair documentary practices was formerly referred to as document abuse. It refers to discriminatory practices related to the verification of employment eligibility in the Form I-9 process. Employers that treat individuals differently based on national origin or citizenship commit unfair documentary practices when they engage in one of four types of activity: 1) Improperly requesting that employees produce more documentation than is required to show identity and employment authorization; 2) Improperly asking employees to produce a particular document to show identity or employment eligibility; 3) Improperly rejecting documents that appear to be genuine and be-longing to the employee; and 4) Improperly treating groups of applicants differently (for example, based on looking or sounding foreign) when they complete Forms I-9.

    The following are examples of prohibited practices when they are based on an employee’s “national origin’ or “citizenship or immigration status”:

    • Setting different employment eligibility verification standards or requiring different documents based on national origin or citizen-ship status;
    • Requesting to see employment eligibility verification documents before hire and completing the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen;
    • Refusing to accept a document or to hire an individual because an acceptable document has a future expiration date;
    • Limiting jobs to U.S. citizens, unless a job is limited to citizens by law or regulation;
    • Asking to see a document with an employee’s “Alien” or “Admission number” when completing Section 1 of Form I-9; and
    • Asking a lawful permanent resident to re-verify employment eligibility because the person’s green card has expired.

    For more information on avoiding unfair documentary practices and many other issues related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at
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