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INA 212(f): Trump's path to dictatorship over immigrants and US citizens? Pt. 2. Roger Algase

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First, I want to thank the readers who took the time to read my comments on this subject in Part 1 posted on the morning of September 19, and to share their reaction.

One theme that seems to have been common to more than one of the people who wrote comments is that INA Section 212(f), which gives the president broad powers to exclude immigrants based solely on his/her own determinations is primarily an anti-terror statute.

One comment, for example, describes the law as giving the president power to exclude immigrants who are a "danger" to the US. In reality, the word "danger" or "dangerous" appears nowhere in this provision, which I quoted in full in Part 1 of my comments.

The operative words in the statute are much broader, namely immigrants who are "detrimental to the interests" of the United States.

Of course, this obviously includes immigrants who are a "danger", but it goes far beyond that. A president could find that immigrants are "detrimental" to the interests of the United States for almost any reason that he or she could conjure up - economic, social, or (and I know that some people don't like it when I use this word) racial.

It may be taboo among some people to bring up this subject now, but for most of our history, race was not only not taboo when crafting immigration laws, but it was considered essential.

This was certainly true when the first Chinese exclusion law was enacted in the 1880's, and it was true when the "Nordics -only" Johnson-Reed immigration act was enacted in 1924. This is to name only two of the most famous (or infamous) immigration laws in America's history that were openly based on racial considerations.

This is why 1965 was one of the most momentous years in our entire immigration history, because that was the year when Congress abolished the 1924 law and, for the first time in more than 80 years (or perhaps the first time ever) instituted an officially race-neutral immigration system to America.

That is why it is disturbing, to say the least, to read Trump's August 31 immigration speech and see his references to "outmoded", "fifty-year old" immigration laws which, in his view, need to be revisited.

Another feature in Trump's Arizona speech also relates to the extremely broad scope of INA Section 21(f). This is the notion that there are allegedly too many immigrants; that we need to cut immigration down to "historical" levels.

Does INA Section 212(f) give the president the power to find that law-abiding, hard working, tax-paying, productive legal immigrants who love their families just as much as Trump loves his own immigrant wife, along with his other family members, are "detrimental" to the interests of the US - simply because a president may think there are too many immigrants (especially non-white ones, which one has to suspect is a major concern among restrictionist legislators and organizations whose decades-long anti-immigrant rhetoric Trump, arguably, appears to have borrowed from in his Arizona speech)?

Based on the plain language of this statute, the answer has to be "yes". The above consideration could certainly be a reason to bar any and all further immigration to the US under Section 212(f).

This is an extremely broad and far-reaching statute - not just an anti-terror protection. And it is exactly the kind of law that Trump says he loves - and would like to use as president, according to his own statements as reported in the Washington Post on June 15. And, lest anyone accuse me of making "unsubstantiated" allegations about Trump. I will quote his exact statements as reported in that article.

But first, i will quote Attorney Matt Kolken, whom the Washington Post, in the same article, reports as stating the following:

"The immigration law was designed to give as much authority to the executive branch as humanly possible, and to preclude the judicial branch from being able to review these decisions".

This is an entirely accurate assessment of Section 212(f), and also makes clear that this provision is not limited to dealing only with national security or terrorism issues, as some people mistakenly assume.

Now, over to Donald Trump. This is what he has to say about Section 212(f), as quoted in the Washington Post (again, with apologies to any readers who may think that quoting Trump's own exact words about the immigration laws shows a lack of proper respect for America's potential next Leader and who seek to raise a Furor over that issue).

First, Trump is quoted as follows on June 13:

"The immigration laws of the United States give the president powers to suspend entry into the country of any class of persons. Now, any class - it really is determined and to be determined by the president for the interests of the United States. And it's as he or she deems appropriate."

The WP also quotes Trump as saying the following on the same day, June 13:

"The president has the right to ban any group or anybody that he feels is going to do harm to our country. They [the presidents] have an absolute right...And so the president of this country has the right to do this."
st

See:


http://www.washingtonpost.com/news/f...ss-of-persons/


Let me begin by defending Trump with regard to the above quotations against any possible accusation that he misrepresents or distorts the immigration laws. In this case, Trump's characterization of INA Section 212(f) is entirely correct - except for one little quibble:

This section does not give the president authority to ban everyone from entering the US. The law only applies to "aliens" (a pejorative term for foreign citizens or immigrants, based on a Latin word which, among other things, means "strange" or "hostile", and which no longer belongs in our laws - if it ever did - and hopefully will one day be removed as part of a Comprehensive Immigration Reform law).

But other than the fact that the president has no power under this law to bar US citizens from entering the United States, Trump is totally right about the content of this section, and especially in his use of the word "absolute" to describe the power it confers on the president to bar foreign citizens.

But the word "absolute" in Trump's above quoted remarks, while "absolutely" accurate, should also be a matter of concern to those who care about America's democracy for exactly that reason.

It is also noteworthy, that while Trump's above quoted interpretations of INA Section 212(f) were made in response to a horrific mass killing which of course raised serious concerns about terror and national security, the clear implications of his remarks go far beyond questions of publkic safety and security, and into the realm of "absolute" power, to use Trump's own word.

For reasons that will be explained further in my next post, this could be well looked at as an example of Trump's entire presidential campaign in microcosm, one in which preying on fear of Muslim and other minority immigrants could become a stepping stone to seizing absolute power.
________________________________
Roger Algase is a 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 diverse parts of the world and ethnic/religious backgrounds obtain work visas and green cards.

Roger's email address is algaselex@gmail.com

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Updated 09-20-2016 at 10:20 AM by ImmigrationLawBlogs

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