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Legal Experts Condemn Trump's Ban On Muslim Entry As Unconstitutional. Roger Algase

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Donald Trump's controversial call to ban all Muslims from entering the US has drawn criticism from legal experts, according to a December 8 NBC News article. See:

http://www.nbcnews.com/politics/2016...uslims-n476041

First, let us make clear exactly who would be covered by this ban. According to a related NBC News article, dated December 7, Trump campaign spokesperson Hope Hicks was asked whether Trump's proposed ban on entry by Muslims would also apply to those who are American citizens. She replied: "Mr. Trump says 'everyone'."

http://www.nbcnews.com/politics/2016...im-ban-n475951

Whether electing someone as president who cares so little for the Constitution that he would ban US citizens from entering their own country on purely religious grounds is consistent with this country's ability to continue as a democracy is an issue that concerns Americans of every religious faith, or none at all. Barring American citizens from entry would amount to religious discrimination that goes far beyond just immigration policy.

If American citizens can be barred from entering their own country purely on the basis of their religion, what would prevent the government from taking citizenship away from Muslims entirely? This was done in another country only 80 years ago, in 1935, against a different religious group in a legislative package known as the Nuremberg Laws.

However even if Trump's proposal is taken as applying only to entry by non-US citizens, legal experts still see serious Constitutional problems with it. It is true, that as decided in the notorious 19th Century Supreme Court Chinese exclusion cases, there is no such thing as a Constitutional right by a non-citizen to enter the US.

Whether this doctrine should continue to be recognized in the United States, given its origin in Supreme Court decisions which were no less racially motivated in their approach toward Asian immigrants than the infamous Dred Scott decision was toward African-Americans, is a question well worth examining.

But even accepting the doctrine that there is no such thing as a Constitutional right by a non-US citizen to enter the US, there can be cases where this doctrine conflicts with unquestioned Constitutional rights that apply to all persons, not only US citizens. There include, of course, the due process and equal protection clauses.

They also include the First Amendment's guarantee of free exercise of religion and its prohibition against an establishment of religion.

To be continued in Part 2 of this series.
________________________________
Roger Algase is New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants from many different parts of the world and religious backgrounds obtain work visas and green cards.

Roger believes that allowing prejudice or discrimination against any group of immigrants to influence our laws endangers the rights of all other immigrants as well. It can also undermine the democracy which all Americans hold sacred. Roger's email address is algaselex@gmail.com

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Updated 12-19-2015 at 03:32 PM by ImmigrationLawBlogs

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Comments

  1. Nolan Rappaport's Avatar
    Why do you think aliens seeking admission to the US have constitutional rights to due process, equal protection, and freedom of religion or speech? My understanding is that due process to an alien seeking admission to the US is limited to whatever is provided by law...not the constitution. Think about what you are suggesting. Do you really think aliens seeking admission have a right to appear before a federal court to claim that they have been denied due process or any of the other rights you mention? Take a look at IIRIRA. It spells out what rights an alien seeking admission have. As I recall, if they don't have visas or other entry documents and can't meet the burden of proof for an asylum hearing in expedited removal proceedings, they don't have any rights at all. If I am wrong, please cite the INA provisions that give them additional rights.
  2. Retired INS's Avatar
    Quote Originally Posted by Nolan Rappaport
    Why do you think aliens seeking admission to the US have constitutional rights to due process, equal protection, and freedom of religion or speech? My understanding is that due process to an alien seeking admission to the US is limited to whatever is provided by law...not the constitution. Think about what you are suggesting. Do you really think aliens seeking admission have a right to appear before a federal court to claim that they have been denied due process or any of the other rights you mention? Take a look at IIRIRA. It spells out what rights an alien seeking admission have. As I recall, if they don't have visas or other entry documents and can't meet the burden of proof for an asylum hearing in expedited removal proceedings, they don't have any rights at all. If I am wrong, please cite the INA provisions that give them additional rights.
    You are correct. I was an immigration Inspector in El Paso and the Port Director in Laredo. Constitutional rights did not apply to any applicants for admission until they had been admitted. That meant everyone, even U.S. citizens. We could search anyone without a warrant or even without explaining why. That said, the law, not the Constitution, stated we could not deny admission to any American citizen once we were convinced the person was a citizen. The same is true for members of the military who are not citizens, they cannot be denied admission if they are on active duty. Sometimes illegal aliens join the military. When this happens, we have to wait until the alien is completely discharged before taking any action. If the military does not dismiss the soldier, we can do nothing about the illegal status. The Jay Treaty of 1796 also mandates that Native Americans born in Canada can cross the border at will.
  3. ImmigrationLawBlogs's Avatar
    Nolan, you are right up to a point; but first, the time is long overdue for revisiting this doctrine, which has its origin in the Chinese exclusion law cases, which, like Dred Scott, are decisions that are predicated on the alleged inferiority of certain non-white racial groups, and for this reason, are better off being forgotten than followed.

    Hopefully a less reactionary Supreme Court, no doubt with the help of one or two judges to be appointed in the future by newly elected President Clinton, will be equal to this responsibility. 21st Century America, which soon will no longer be a white majority country, does not need 19th century cases such as Chae Chan Ping v. US, with its open, vile, anti-Chinese bigotry (don't take my word for that - read the decision yourself) any more than its needs to bring back Dred Scott. or Korematsu.

    However, granted that the notorious Chinese exclusion cases have not yet been overruled, the doctrine that non-US citizens have no Constitutional rights to enter the US has its limits anyway, as I will contend in Part 2 of this series, which will most likely appear after the New Year.

    But to give you a hint, I think that barring all non-citizen members of a particular religion from entering the US, for no other reason than that their particular religious belief is not approved by Congress as permissible for immigrants in this country to practice, would have a huge problem standing up under the establishment of religion clause in the First Amendment, and, no doubt, the free exercise clause as well.

    Of course, if anyone wants to argue that the 1888's and 1890's Chinese exclusion law decisions were sound and should be followed today, let's hear it. I think it would be a very tough argument.

    And here's a hypo for you: Congress passes a law making conversion to Islam by any non-Muslim non-citizen who is already legally admitted and present in the US grounds for deportation, without requiring a showing of any other facts or circumstances: Constitutional?

    Roger Algase
    Attorney at Law
    Updated 12-18-2015 at 07:40 PM by ImmigrationLawBlogs
  4. Retired INS's Avatar
    Of course Donald Trump's desire to keep out all Muslims is not legal. However, based upon past decisions with asylum and refugee cases, not very many Syrian refugees should be admitted unless their religion was other than Muslim, such as Christian or Bahai. Nobody has a Constitutional right to enter the United States. American law, not the Constitution states who can enter. Supreme Court decisions have sometimes been wrong, but we no longer follow the Dred Scott decision. The 14th Amendment was passed for two reasons (that I can think of): (1) to overturn Dred Scott; and (2) to reinforce the civil rights act of 1866 which took citizenship decisions away from the states and gave them to the federal government. The 14th Amendment also changed the language in the 1866 civil rights act, which stated that children of foreign visitors were not American citizens.
  5. ImmigrationLawBlogs's Avatar
    Retired INS, you are right that Dred Scott, which, in 1857, held that because of the inferiority with which black people were regarded by whites, black people were not eligible for American citizenship under the Constitution, even if born in the United States, was, in effect, overturned by the Civil war. It is no longer the law of the land.

    But your comment is not responsive to my discussion of the 1889 Chae Chan Ping and the other Chinese exclusion cases, where the Supreme Court, in effect, held that Chinese immigrants were inferior to white people and could therefore be barred from coming to the US (or becoming naturalized US citizens if already here) on purely racial grounds (even though US-born Chinese could not be deprived of birthright citizenship - See Wong Kim Ark, 1898).

    Therefore, while Dred Scott is not longer the law with regard to depriving people of birthright US citizenship on racial grounds, the spirit of Dred Scott lives on in the Chinese exclusion law cases, which have never been overruled, even though the statutes on which they were decided have long since been abolished.

    Well, not so long ago, actually - they were not abolished in toto until 1953, or, even, arguably , until 1965.

    And cases such as Chae Chan Ping still stand as precedents for excluding entire groups of people from the United States based on race.

    While no one is now suggesting excluding immigrants based explicitly on race (since The Donald doesn't seem to have gotten around to making such a proposal yet), excluding an entire class of immigrants based on religion inevitably requires relying on the overtly racist (again-read the decisions - don't take my word for it) Supreme Court Chinese exclusion law cases.

    The doctrine that no non-US citizen has any Constitutional right to enter the US, and that Congress can make any laws it wants in this regards, no matter how racist or bigoted, depends on these Chinese exclusion law precedents.

    These cases, unlike Dred Scott, are still the law of the land. Should they continue to be?

    Roger Algase
    Attorney at Law
    Updated 12-19-2015 at 03:33 PM by ImmigrationLawBlogs
  6. Retired INS's Avatar
    Roger - Nothing in the Constitution gives anyone the right to enter the United States. The Constitution lets Congress make that decision. Legally, the ban against Asians ended in 1943 when we needed China's help during WWII. However, the National Origins law made a mockery of the olive branch we gave to China. Keep in mind, the ban against Chinese was eventually enlarged to include India, Japan, the Philippines and much of the Middle East. Therefore, these exclusion laws were no longer based on race, but geography. I think the Constitution allows us to use geography as a means of making immigration laws. There are other bad Supreme Court decisions that have been overturned by the passage of time. Unless some outrageous law was passed, there would be no need for the Court to reconsider an old case.
  7. Nolan Rappaport's Avatar
    [QUOTE=ImmigrationLawBlogs;bt41611][SIZE=2]Nolan, you are right up to a point; but first, the time is long overdue for revisiting this doctrine, which has its origin in the Chinese exclusion law cases, which, like Dred Scott, are decisions that are predicated on the alleged inferiority of certain non-white racial groups, and for this reason, are better off being forgotten than followed.]

    An easier solution would be to amend the INA to remove IRIRA's expedited removal proceedings provisions, but if you want to make such a proposal, you should be ready to suggest an acceptable alternative that would address the problem it was established to solve. Before IRRIRA was enacted, any alien could appear at our border and ask for an asylum hearing. He/she would be paroled into the US for a hearing before an immigration judge without having to make any kind of showing that he would be able to establish eligibility for asylum. The gov't didn't have facilities to detain them while they waited for their hearings and they couldn't afford a bond, so they were released on their own recognizance, i.e., on their promise to appear when their hearing was called. I don't know if any of them ever returned for a hearing, but if so, it was a very small percentage of them.

    IRRIRA established expedited removal proceedings to limit the availability of asylum hearings before a judge to aliens who could make a strong enough showing of eligibility to warrant such a hearing.

    Okay Roger, what would you put in place of removal proceedings that would satisfy congressmen who don't want to let aliens enter the US for an asylum hearing without having to make some kind of a showing that they can establish eligibility for asylum? Hint. You need to start with expedited removal proceedings and modify them to make them more acceptable.
  8. ImmigrationLawBlogs's Avatar
    I don't quite catch how Nolan managed to change the subject from whether banning immigrants from the US solely on religious grounds, which goes against every principle that America was founded on and stands for, is permitted by the First Amendment to the Constitution, over to the totally different topic of whether or not we should have a law providing for expedited removal.

    These are totally different topics. I do not oppose Nolan's remarks about the need to "satisfy Congressmen" in order to get immigration laws passed. This is, no doubt, a worthy and important topic that Nolan is exceptionally well qualified to write about, based on his long experience as a Congressional staffer dealing with immigration.

    But that is not the topic that I wrote about in my post. I wrote about satisfying the Constitution.

    Roger Algase
    Attorney at Law


    Updated 12-19-2015 at 02:41 PM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    Retired INS, would a law banning all Muslim non-US citizens from entering the US, solely because of their religion and for no other reason, be outrageous enough to justify revisiting the Chinese exclusion law cases, which are just as much a stain on America's legal history as Dred Scott, even if no one fought a Civil War over them?

    I think it would.

    You also contend that the racial restrictions on immigration contained in the Chinese exclusion laws eventually changed to geographical one, not racial ones.

    When the national origin quotas in the 1924 immigration act were enacted in order to keep out Italians, Greeks, Jews, Eastern Europeans, Middle Easterners and almost everyone else other than "Nordic" immigrants from Northern and Western Europe, it was also claimed at that time that the restrictions were geographical, not racial.

    No one took that that kind of argument seriously then, and no one should do so now.

    Roger Algase
    Attorney at Law
    Updated 12-19-2015 at 04:42 PM by ImmigrationLawBlogs
  10. Retired INS's Avatar
    Roger - The authors of National Origins were not stupid. Of course they were intended to keep out Catholics in particular, and Eastern Europeans in general. That said, they did it with enough justification on past immigration practices to give the outward appearance of protecting America. The first National Origins law used the 1890 census rather than the 1910 or even 1920 in order to increase the percentage of Protestant immigrants.

    I don't disagree with you, but I don't see the need to fight a battle that doesn't need to be fought. We need a complete rewriting of our badly outdated immigration law. We still use the framework of the 1952 law that has been amended so many times it is hard to keep track of what is in the law now, or when some parts of the law were put in.

    It bothers me that few people understand that Senator Rubio was trying to rewrite the entire law, and in a good way. I reviewed much of the proposal and thought it was good. I don't believe in open borders, but I have arrested enough illegal aliens to know what won't work. Beginning with mandatory E-Verify will destroy California agriculture and a few other industries. Nobody points out that E-Verify, in its present form, is easily avoided by buying counterfeit cards with real information. There has been enough identity theft to give fake cards real names and social security numbers. Such cards would look real on an E-Verify check. Besides, many counterfeiters are purchasing real information from legal residents, who get paid to have their information used. I have seen the adds, "Will pay $$ for information from your green card."
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    Roger Algase
    Attorney at Law
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  16. dona000's Avatar
    What Donald Trump is trying to do is that he wants to en cash the hatred that the world have for Muslim Community. And it is to be noted that many Americans still feel that the 11/9 incident was related directly to the Muslims as all the attackers belonged to Arab country. This is the best was when you have many things to mention in your election manifesto both development and expelling muslims from USA. In India many politicians play the same game.
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