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INA 212(f): Trump's path to dictatorship over immigrants and US citizens? Part 1. Roger Algase

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Update: September 19, 9:07 am:

The latest news reports are that the FBI is looking for a naturalized US citizen, originally from Afghanistan, as a possible suspect in the September 17 explosive device attacks in New York and New Jersey. According to The Hill, Donald Trump has lost no time in attempting to exploit this latest event for his own purposes.

See:

http://www.thehill.com/blogs/ballot-box/presidential-races/296576-trump-our-leaders-are-stupid

This makes my following comments about what legal rights, if any, Trump would have to bar entire classes of immigrants, or even individual immigrants, from the US by presidential decree if he becomes president even more pertinent.

My original post appears below:

If Donald Trump becomes president, could he reduce America's present complex immigration law system, which has been described as being second only to the tax laws in complexity, to a simple one of rule by decree?

The answer is yes, at least to the extent of 50 per cent. The president might not be able to decide by executive fiat which immigrants to admit to the United States, but he or she certainly has the power to exclude any immigrants or classes of immigrants that he or she determines to be "detrimental to the interests of the United States".

INA Section 212(f) provides, in relevant part, as follows:"

(f) Suspension of entry or imposition of restrictions by the president - Whenever the president finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period of time suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

It is is hard to imagine any power that could be broader than this. One might argue that the above provision could not be used to exclude individual immigrants who might attract Trump's ire for any reason.

For example, former Mexican president Vincente Fox, whose scathing attack on Trump as a potential Latin American style dictator was reported in the Washington Post on September 13 (link to be provided) would probably not be very high on Trump's list of visitors or immigrants who who would be welcome in the US, judging by the comments that Trump has made against so many of his American critics as "losers", "mediocre", "not very bright", "crazy", etc.

If Trump were to order that Fox should be refused a visa under the above INA provision, could Fox argue that this law applies only on "classes of aliens" , not individuals seeking admission? Well he might, but in what forum?

The US Supreme Court has made clear that foreign citizens do not have any constitutional right to seek admission to the US on their own behalf, and arguments that the rights of Americans are harmed by refusing admission to any given foreign citizen or citizens have not been welcomed with any great enthusiasm in that Court so far.

See Kleindienst v. Mandel (1972) and Kerry v. Din (2015).

Alternatively, Trump might deny Fox (or any other foreign citizen who speaks out against him) admission to the US on the grounds that the person belongs to a "class" of immigrants who do not "respect" America (i.e. its president, Donald Trump) or "American values", i.e. whatever Trump wants to say or do.

Arguably, there might be a precedent for this in Trump's own August 31 Phoenix immigration address in which he proposed to bar anyone who doesn't support American "values" from entering the US.

But a more apt precedent would be in the actions of certain rulers in countries other than the US (and for whom Trump has had at least some kinds words), such as Russia's Vladimir Putin, Nortn Korea's Kim jong Un and Saddam Hussein of Iraq, all of whom have made clear that they do not welcome dissenting voices.

However, I do not want anyone to misunderstand me. My concern about what i see as a possibility that Trump might use Section 212(f) to rewrite our immigration laws by personal decree is not limited to whether or not he might choose to ban certain individual immigrants who might rub him the wrong way, as in the above example.

A much bigger concern is whether Trump might use this section to justify his proposed Muslim ban, thereby holding over a billion members of a major world religion responsible for a few despicable terrorist acts (including the latest NYC/NJ attacks this past weekend which are now under investigation as possible terrorism by an alleged suspect born in Afghanistan - see my update above).

But, under INS Section 212(f), the president would have even greater
power than anyone has imagined. For just one example, suppose Trump, who has already announced his intention to abolish legal H-1B work visas and labor certification green cards, decides to use this 212(f) to do so?

A lot easier (for him) than going through Congress, which would now become irrelevant.

Or suppose, taking advantage of possible suspected terror attacks such that those now under investigation in New York and New Jersey, Trump cuts off all immigration, except possibly from Europe, where his wife and grandparents came from - in a return to the spirit of the bigoted 1924 "national origins" Johnson-Reed immigration act, in order to please his white supremacist followers?

Would this be impossible? Not if one pays close attention to Trump's August 31 Phoenix speech in which, by clear and obvious implication, he criticized the 1965 immigration reform law which abolished the "Nordics only" quotas of the 1924 immigration law.

Moreover, if Trump (or any future possibly authoritarian chief executive) gains the power to rewrite our immigration laws by executive diktat, will the rights of American citizens be safe from being taken away by the simple stroke of a presidential pen?

To be continued in a forthcoming post.
_________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing immigration law, most of this time concentrating in H-1B, labor certification, and other skilled and professional work visas and green cards, for more than 35 years. Roger's email address is algaselex@gmail.com

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Updated 09-20-2016 at 07:56 AM by ImmigrationLawBlogs

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  1. Unregistered222's Avatar
    This comment has been deleted for containing a personal attack and attacks based on race or religion. This site is for discussion of immigration law related issues only.

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 07:25 AM by ImmigrationLawBlogs
  2. MKolken's Avatar
    As someone who represents individuals who have been found inadmissible under INA 212(f) I can tell you definitively that the Obama administration frequently employs the law to bar entire classes of individuals they suspect of alleged terrorist acts.

    But I get it Roger, it is only racist, xenophobic, and deplorable if a Republican does it:

    Another INA Sec. 212(f) Travel Ban: Certain Persons from South Sudan:

    "By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 et seq.) (NEA), section 212(f) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(f)), and section 301 of title 3, United States Code, I, BARACK OBAMA, President of the United States of America, find that the situation in and in relation to South Sudan, which has been marked by activities that threaten the peace, security, or stability of South Sudan and the surrounding region, including widespread violence and atrocities, human rights abuses, recruitment and use of child soldiers, attacks on peacekeepers, and obstruction of humanitarian operations, poses an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat. ... I hereby find that the unrestricted immigrant and nonimmigrant entry into the United States of aliens determined to meet one or more of the criteria in section 1(a) of this order would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants or nonimmigrants, of such persons. Such persons shall be treated as persons covered by section 1 of Proclamation 8693 of July 24, 2011 (Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions)." - Executive Order 13664 of April 3, 2014.
    Updated 09-19-2016 at 11:45 AM by MKolken
  3. ImmigrationLawBlogs's Avatar
    Matt, with all due respect, you seem to be missing my point. I have no objection to INS Section 212(f) being used against reasonably suspected terrorists or egregious human rights violators.

    For your information, my own midtown Manhattan law office is located in the same Chelsea, New York area where this past Saturday's explosive device attack took place. None of us can afford to be insensitive to the threat of terrorism.

    But does that mean that turning to dictatorship is the only choice?

    If you read my comment carefully, you will see that i am raising the possibility that Trump might seek to use the above section, not for genuine security purposes, but to stifle criticism of himself or keep out any immigrants (such as Muslims, but they could be anyone), whom he doesn't want in this country for political or any other reasons, just as some of the dictators he has expressed admiration for have done in their countries.

    Do President Obama or Hillary Clinton have spotless records on immigration policy? Of course not, and I have never made any such absurd claim.

    But for anyone who has been paying attention to Trump's campaign, rather than burying one's own head in the sand, there is good reason to believe that, if Trump becomes president, then as far as the possibility- indeed the likelihood of authoritarian or dictatorial actions regarding immigration policy under the color of law, which is the concern of my comment, "You ain't seen nothing yet."

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 05:59 PM by ImmigrationLawBlogs
  4. MKolken's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Matt, with all due respect, you seem to be missing my point. I have no objection to this section's being used against suspected terrorists.
    And you miss my point entirely.

    The Obama administration's employment of INA 212(f) has been wholly arbitrary and discriminatory. Have you ever represented someone found inadmissible under this section of law? I'm guessing no.
  5. ImmigrationLawBlogs's Avatar
    Matt, fortunately for my clients, none of them has ever been affected by this section of the law and I have accordingly never been involved with it in my own practice.

    My only point is that if Donald Trump becomes president, a lot more of us as attorneys may have occasion to deal with this section of the law than is the case now, and just for doing our job as lawyers, immigration attorneys in general may be at much greater risk of retaliation from a Trump administration than is the case now, based on the threats that Trump has made against many of his political/media opponents to date, not to mention his threats to lock up or "deport" Hillary Clinton, which are a matter of public record and should not be laughed off as easily as some people might be inclined to do.

    Roger Algase
    Attorney at Law

    Updated 09-19-2016 at 09:21 AM by ImmigrationLawBlogs
  6. MKolken's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    My only point is that if Donald Trump becomes president, a lot more of us as attorneys may have occasion to deal with this section of the law than is the case now, and just for doing our job as lawyers, immigration attorneys in general may be at much greater risk of retaliation from a Trump administration than is the case now, based on the threats that Trump has made against many of his political/media opponents to date, not to mention his threats to lock up or "deport" Hillary Clinton, which are a matter of public record and should not be laughed off as easily as some people might be inclined to do.

    Roger Algase
    Attorney at Law

    You have had your head in the sand.
  7. MKolken's Avatar
    Also see: Obama Admin Doubling Down to Prevent Muslim Refugees From Reaching US: "The Obama administration's actions are a carbon copy of what Donald Trump has stated in the past on refugee from Syria"
  8. ImmigrationLawBlogs's Avatar
    To illustrate my point. Trump is also on record as saying that he will abolish legal H-1B skilled worker visas and Labor Certification green cards (both of which happen to be areas that I know a good deal about and have quite a bit of experience in) if he becomes president (even though he has reportedly been just fine with applying for one or the other of these for over a thousand of his own employees).

    If Trump becomes president, what would there be to stop him from abolishing these two types of legal immigration categories (or any others that he might pick), simply by executive fiat by using INA Section 212(f), while no doubt, arguing that the idea to do so really came from President Obama or Hillary Clinton)?

    Then we wouldn't need Congress or the courts as part of our immigration system. I know that many Republicans are already making an argument against Obama's DAPA/DACA on the same basis.

    I assume that Matt would not be joining in with the Republicans on that issue.

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 09:55 AM by ImmigrationLawBlogs
  9. MKolken's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    To illustrate my point. Trump is also on record as saying that he will abolish legal H-1B skilled worker visas and Labor Certification green cards (both of which happen to be areas that I know a good deal about and have quite a bit of experience in) if he becomes president (even though he has reportedly been just fine with applying for one or the other of these for over a thousand of his own employees).

    Roger Algase
    Attorney at Law
    The H-1b system is rife with fraud, and needs to be completely revamped.

    For example:

    U.S. uncovers $20M H-1B fraud scheme

    The U.S. government has indicted a Virginia couple for running an H-1B visa-for-sale scheme the government said generated about $20 million.

    Raju Kosuri and Smriti Jharia of Ashburn, Va., along with four co-conspirators, were indicted last week by a federal grand jury in Alexandria, Va., according to the Department of Justice (DOJ).

    The scheme involved, in part, setting up a network of shell companies and the filing of H-1B visas applications for non-existent job vacancies.

    New York Lawyer and Wife Pay $1 Million Following Conviction on Immigration Fraud Scheme

    The Office of the United States Attorney for the District of Vermont announced today that Loreto Kudera, age 45, and Hazel Kudera, age 43, a married couple from New York, New York, who have pleaded guilty to an immigration fraud scheme, have paid the final installment of their $1 million forfeiture penalty representing ill-gotten gains from the scheme.

    Four People Charged In H-1B Visa Fraud Scheme

    Four people have been charged with conspiring to submit more than 100 fake H-1B visa applications, a scheme the Justice Department says was aimed at creating a pool of workers to compete with U.S. staffing firms, according to a Friday announcement by the DOJ.

    The 33-count indictment filed May 5 with a California federal court alleges that for several years, Venkat and Sunitha Guntipally, Pratap “Bob” Kondamoori and Sandhya
    Ramireddi used “deceit, craft, trickery, and dishonest means” in a scheme aimed at placing H-1B workers at temporary positions with companies that differed from the end-companies listed on the visa petitions.

    Judge sends two to prison for 7 years for H-1B fraud

    Two brothers were sentenced Friday to 87 months in prison for running an H-1B fraud scheme intended to create a low cost, on-demand workforce, federal law enforcement officials said.

    Atul Nanda, 46, and his brother, Jiten "Jay" Nanda, 45, were each sentenced by Judge Barbara M. G. Lynn, the Chief U.S. District Judge for the Northern District of Texas, to 7 years and two months in federal prison, according to U.S. Attorney John Parker. The brothers were recently convicted by a jury following a trial.
    Updated 09-19-2016 at 11:43 AM by MKolken
  10. Unregistered222's Avatar
    Comment deleted for reasons below.


    Quote Originally Posted by Unregistered222
    This comment has been deleted for containing a personal attack and attacks based on race or religion. This site is for discussion of immigration law related issues only.

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 11:49 AM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    Matt, who is one of America's most active and respected defenders of the rights of unauthorized immigrants, is not giving a full picture of the situation regarding legal H-1B visas.

    Just as there are some unauthorized immigrants who have committed violent crimes, there are doubtless some cases of H-1B fraud as well, among the hundreds of thousands, or millions, of H-1B cases which have been approved.

    I cannot understand why someone who has been standing up for immigrants as much as Matt would want to cancel an entire legal visa category because of a few well publicized fraud cases.

    Shouldn't we leave that kind of argument to people such as Sen. Jeff Sessions and Sen. Charles Grassley who have been fighting against legal immigration for many years using every possible argument they can think of?

    Based on this kind of logic one could argue that all of Matt's unauthorized immigrant clients should be deported because there are admittedly some (more than a few) bad apples among the unauthorized immigrant population.

    If Trump is right that legal immigrants (or many of them) are bad for America, is he wrong about the 12 million immigrants who have no legal status?

    Roger Algase
    Attoenry at Law
    Updated 09-19-2016 at 12:32 PM by ImmigrationLawBlogs
  12. MKolken's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Matt, who is one of America's most active and respected defenders of the rights of unauthorized immigrants, evidently has to learn a little more about legal immigration.
    Please spare me your withering condescension about my knowledge of legal immigration.

    I helped draft the proposed legislation that was to be introduced by House Republicans to reform our legal temporary worker system, but was stalled when Obama implemented executive actions. In fact, a copy of the discussion draft is sitting on my desk.
  13. ImmigrationLawBlogs's Avatar
    My comment about Matt's knowledge of legal immigration has been revised as shown above. My intention was to dispute his comments about H-1B in particular, which I believe to be unfair and one-sided, not about legal immigration in general. I was not aware that Matt was involved in drafting proposed legislation relating to legal immigration.

    Based on that information, Matt obviously has expertise in that area. That does not imply any agreement with his H-1B comments on my part.

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 12:29 PM by ImmigrationLawBlogs
  14. MKolken's Avatar
    And incidentally Roger, I didn't see you quoted in this Washington Post Fact Check of Donald Trump on this very issue.
    Updated 10-03-2016 at 10:52 AM by MKolken
  15. ImmigrationLawBlogs's Avatar
    Matt, your comment quoted in the Washington Post article, which I will be discussing further in my next Immigration Daily post, is right on point. I might only add to it (though this is also implied in your comment) that Section 212(f) was appparently meant to eliminate any role by Congress, as well as the judiciary, in making these immigration decisions.

    This may be beside the point, but to me it is an interesting coincidence that both the president who tried to veto this provision and the would-be president who is showing at least some interest in using it, as the WP reports, both begin with the letters "TRUM".

    This of course does not imply any connection or collusion between the two!

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 12:57 PM by ImmigrationLawBlogs
  16. ImmigrationLawBlogs's Avatar
    I would also like to make clear that my references to Matt's activities on behalf of unauthorized immigrants, especially those who have been and are still being incarcerated in inhuman conditions under procedures, or lack of them, that have no place in a democratic country, are not meant as "condescension" in any manner whatsoever, but are made out of genuine admiration and appreciation for Matt's activities, which fundamentally, are not only for the benefit of immigrants, but for all of us in America who value the essential freedoms on which our democracy depends.

    All immigrants and Americans alike owe Matt a very big debt of gratitude for speaking out so forcefully on behalf of immigrants whose basic human rights are being violated so shamefully under the current administration, with (in my view at least) possibly even worse to come if Trump wins this election.

    My only hope is that if Trump wins, pro-immigrant advocates such as Matt will still be allowed to speak out, loudly and clearly, without fear.

    That is my biggest concern about a Donald Trump presidency, for reasons that I will make clear in my next post.

    Roger Algase
    Attorney at Law
    Updated 09-19-2016 at 01:24 PM by ImmigrationLawBlogs
  17. ILWlurker's Avatar
    Pray, tell us, Mr Algase - is it "unconstitutional" -- and if so, under what specific article and section -- to deny admission to the US of someone who advocates the overthrow of our constitutional system and impose Sharia as the constitution of the US?
  18. ImmigrationLawBlogs's Avatar
    Under Kleindienst v. Mandel (Supreme Court, 1972), that would in all probability be constitutional, if it is clear that the person seeking admission actually advocated such obnoxious views.

    But if one attributes such views to every Muslim on earth, solely because of religious affiliation, and then bans them all from entering the US for that reason, then there might conceivably be a very big constitutional problem under the First Amendment guarantee of freedom of religion which is at the very heart of our democracy.

    Moreover, and this is my main point, INA Section 212(f) is not limited by its terms to just national security considerations. It is an extremely broad statute which allows the president, without consulting with or obtaining approval of any other branch of the government, to ban anyone, or any group of people, for just about any reason, just by stating that admitting them is not in the US "national interest" and without any explanation or justification.

    My contention is that this extremely broad power could be misused in the hands of someone with the tendencies toward strong man rule that Donald Trump has exhibited during his presidential campaign.

    It is also my contention, as I will explain further in a forthcoming post, that giving one person such broad and unfettered power over immigration, could be used as a precedent for his assuming the same power over the lives of US citizens as well, not only immigrants.

    Roger Algase
    Attorney at Law


    Updated 09-19-2016 at 03:22 PM by ImmigrationLawBlogs
  19. BMChou's Avatar
    I reviewed both learned counsel's articles and arguments.

    I am worried that U.S. immigration policy becomes more restricted than ever if Trump is elected as U.S.A. president. Before he is even elected, he attacked Chinese, Mexicans, Muslims and even women. I believe that U.S. Constitution and history are based on equal rights. The U.S.A. was really established by "British refugees". Now, does U.S.A. majority wants to close the door to all the aliens? It happened in Ching Dysnasty-last dynsaty in China. Ching's emperor decided to close Chinese doors to all the western powers. What has happened in the end? The U.S.A. is a big country and full of diversity. I believe the diversity is the key factor for all the people coming and contributing to this country. Talk about slogan, "MAKE AMERICA GREAT AGAIN." Last time I check, U.S.A. is the abbreviation of the United States of America, not just AMERICA. American should include North America and South America. Mr. Trump knows how to promote his ideas, but if you look and dissect his talks and interviews, he is talking "trash". Hillary Clinton has her flaws, but she did not talk trash that people like to hear.

    His immigration policy is that "every one should be deported" in the end. In that case, only the Indians before the U.S.A. was born should be staying. Trump's grandfather came from Scottland, right? If we use today's 212(f), how long would his grandfather have to wait?

    Refugees are very hard issue on every country on this earth. Who would love to leave their own country but because of wars? I feel sad and bad about those terroist attacks and vitcims. Look another way, U.S.A. has not produced any refugees up to present, other than some Indian reservations in few states. No one from U.S.A. flowing outside, other than Snowden. Does that mean we have to close our doors tighter? How did Trump propose to administer the tests for future immigrants? It is not realistic. He calls our leader stupid, what kind of wise ideas/proposals does he have? Other than "trust me".

    U.S.A. had Chinese Exclusion act and put Japanese in camp during World war II. Does U.S.A. want to continue the trend and ignore the world's war victims/refugees?

    Just my thought about the overall immigration issues in the U.S.A.

    Thank you to read it.

    B. Marian Chou
  20. ImmigrationLawBlogs's Avatar
    Roger says, "The latest news reports are that the FBI is looking for a naturalized US citizen, originally from Afghanistan, as a possible suspect in the September 17 explosive device attacks in New York and New Jersey. According to The Hill, Donald Trump has lost no time in attempting to exploit this latest event for his own purposes. See: http://www.thehill.com/blogs/ballot-box/presidential-races/296576-trump-our-leaders-are-stupid This makes my following comments about what legal rights, if any, Trump would have to bar entire classes of immigrants, or even individual immigrants, from the US by presidential decree if he becomes president even more pertinent."

    Roger, both candidates quickly issued press releases on the incident. Are you going to say that Hillary lost too time in attempting to exploit this latest event for her own purposes too? In any case, what did he say other than that our current leaders are stupid to admit large numbers of aliens who can't be vetted? And what does that have to do with your flight of fantasy about extreme measures that Trump could take if elected?

    If Trump were not a celebrity, he could sue you for libel and I think he would win. You make one unsubstantiated claim after another in your ongoing effort to make people afraid of a Trump presidency.

    I provided a more comprehensive summary of the president's power to exclude aliens in my article, "
    If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens" (April 20, 3016), http://www.ilw.com/articles/2016,0420-Rappaport.pdf

    Roger also says, "Moreover, if Trump (or any future possibly authoritarian chief executive) gains the power to rewrite our immigration laws by executive diktat, will the rights of American citizens be safe from being taken away by the simple stroke of a presidential pen?"

    Section 212(f) just gives the president the power to exclude aliens he/she thinks are a danger to the US. It doesn't provide any other powers. So what are you talking about when you say "If Trump gains the power to rewrite our immigration laws"?

    Also, some would say that President Obama did that with his DACA and DARPA programs and his other uses of prosecutorial discretion. Has that frightened you too?
    Updated 09-19-2016 at 08:59 PM by ImmigrationLawBlogs
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