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Could Muslim tracking, "Criminal Alien" incarceration and limits on free speech endanger basic rights of immigrants and their advocates? Roger Algase

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The following comments, originally posted on January 1 and January 2, have been updated and revised as of January 6.

These comments will discuss the possible negative effects on the exercise of constitutionally guaranteed freedoms presented by incoming president Donald Trump's proposals to set up multiple tracking systems "beyond" databases to be used against Muslim immigrants and, possibly also US citizens, based solely on their religious beliefs; and his plan to incarcerate up to 3 million immigrants with "criminal records" (very possibly defined as anyone charged with a crime - but not convicted) indefinitely unless or until they leave the US.

However, I will begin with a discussion of how the new president's stated intention to place greater limits on free speech could affect the constitutional rights of immigrants and immigrant advocates to speak out and express their opinions regarding immigration laws and policies.

Constitutional Law professor Josh Blackman (South Texas College of Law), writing in the conservative National Review, provides a disturbing list of the numerous ways in which the Trump administration might try to threaten the basic American constitutional principle of freedom of speech.

This might happen, not only by the incoming president's frequent references to or actual attempts at "opening up" the libel laws to harass and intimidate his opponents with lawsuits; but also, not inconceivably, imposing FCC fines, having the attorney general or IRS investigate organizations which are critical of him, and even shutting down parts of the Internet (something which Trump has actually suggested according to Professor Blackman's article).

As Blackman writes:

"The panoptic powers of the federal government are pervasive.

http://www.nationalreview.com/articl...aration-powers

How would such attempts affect the ability of immigrants and immigrant advocates to speak out for immigrant rights without fear of retaliation?

Another law professor, Michael Kagan, Associate Professor of Law at the University of Nevada, Las Vegas, writes in his 57 Boston College Law Review 1237 (2016) article:

WHEN IMMIGRANTS SPEAK; THE PRECARIOUS STATUS OF NON-CITIZEN SPEECH UNDER THE FIRST AMENDMENT

that the existing First Amendment free speech protections for non-US citizens are already in a less than firm state according to existing court decisions.

Alarmingly, Kagan suggests:

"A situation could easily arise [under the new president] in which, even if the government does not overtly act, a lawyer may need to warn immigrant activists that they are at risk and should consider self-censorship." [57 Boston College Law Review at 1285]

Presumably, the above warning was meant to apply to non-US citizens.

But in the coming administration, could we face a situation where US citizen immigration supporters, and even immigration lawyers, may have also to exercise "self-censorship" for fear of retaliation?

See:

42 Constitutional Law Professors Sign Letter Condemning Trump's Threats to Bar Muslim Immigrants or Register Muslims in the US.

http://blogs.ilw.com/entry.php?9606-...s-Roger-Algase

See also my December 28, 2016 ilw.com post:

Muslim Immigrant Ban Endangers Religious Freedom of All Americans:

http://blogs.ilw.com/entry-php?9609-...1-Roger-Algase

The proposals that the incoming president has made at various times include either a total ban or a partial one, based on "extreme vetting" of Muslim immigrants based on their religious beliefs; and requiring Muslims in the US to register; closing or putting their places of worship under surveillance.

While the president-elect has not specifically proposed this, neither has he ruled out the possibility of sending Muslim US citizens to concentration-camp style "relocation" centers, as was done, to America's eternal shame, with Japanese-Americans during World War 2 - and for which America has since officially apologized and made reparations to the victims.

Legal scholars have also expressed concern about the due process violations that would inevitably take place if Trump's plan to round up and deport up to 3 million so-called "criminal aliens" were to be put into effect.

(Most of these "criminals" have not actually been convicted of any crime - see my November 25, 2016 Immigration Daily comment concerning Trump immigration adviser Kris Kobach's reported proposals in this regard.)

http://blogs.ilw.com/entry.php?9570-...y-Roger-Algase

For more comments by legal scholars on the potential threats to America's democracy that could be posed by the incoming new president, see New York Times, June 3, 2016:

Donald Trump Could Threaten U.S. Rule of Law, Scholars Say

http://www.nytimes.com/2016/06/04/us...ower.html?_r=0

While much of The Times' article deals with constitutional issues, such as free speech, that could affect everyone, including but limited to immigrants and immigration advocates, it also mentions one aspect of immigration policy in particular:

"[Trump's] proposal to bar Muslims from entry into the country tests the Constitution's guarantees of religious freedom, due process and equal protection."

No one who has even the slightest knowledge about the constitution or about basic rights in any free society would have any illusions that the rights of Americans (or immigrants) of any religious persuasion (or none at all) would be safe once people belonging to any segment of a society (such as Muslims in America today or Jews in Germany 80 years ago) have their fundamental rights taken away.

See also the comment by conservative legal scholar John Yoo, author of the notorious "Torture Memos" when he served in the G.W. Bush administration (and currently law professor at the University of California, Berkeley) that Trump could be "very disturbingly similar" to that of past authoritarian rulers

http://www.thestar.com/news/world/20...-dictator.html

One might think that a legal expert such as John Yoo, who achieved notoriety for attempting to uphold the legality of an odious and inhuman practice such as waterboarding, might be less likely to be critical of Trump, who also supports this practice.

But Yoo, at least, tried to draw a line between waterboarding, which he argued wasn't really the same as torture, and the "real thing" itself. America's incoming 45th president, who is bound by a Constitution which prohibits any form of cruel and unusual punishment, has stated that he is not bothered with any such niceties. The Hill quotes Trump as follows during the presidential primary debates:

"I would bring back waterboarding...And I would bring back a hell of a lot worse than waterboarding"

http://thehill.com/blogs/ballot-box/...-waterboarding

The new president possibly might not be aware that 18 USC Section 2340A makes the use of torture by or on behalf of the US government, even if committed outside the US, a federal felony punishable by up to 20 years in prison, or by life imprisonment or even death if the torture victim dies.

To be sure, torture is an issue which conceivably could affect the rights of everyone, not only immigrants or immigration advocates. But if torture were to be used in America, or if Trump were to send US citizens to Guantanamo, as he has also threatened to do, see:

http://www.nytimes.com/2016/08/13/us...uantanamo.html

how many people in this country would feel safe in supporting any immigration policies that the president or his administration might oppose, or vice versa?

Torture would loom like a dark cloud over the entire immigration debate.

The American Civil Liberties Union has also expressed concern about Trump's willingness to adhere to the constitution with respect to immigration policy and related issues:

Donald Trump: A One-Man Constitutional Crisis


https://www.aclu.org/feature/donald-...utional-crisis

The ACLU states:

"...we have undertaken a constitutional analysis of [Trump's] most controversial policy proposals. These include his pledges to deport over 11 million undocumented immigrants, to ban Muslims from entering the United States, to surveil American Muslims and their houses of worship, to torture again, and to revise libel laws...According to our analysis, Trump's proposals taken together would violate the First, Fourth, Fifth, and Eighth Amendments to the Constitution."


What makes so many legal scholars concerned about whether or not our new president-elect is in fact committed to upholding the constitutional values that he will be taking an oath to defend and protect on January 20, less than two weeks from now?

For one example, look at the president-elect's answer to a reporter's question during the campaign about whether he would support a special database for tracking Muslim immigrants (or American citizens) in the United States:

"There should be a lot of systems, beyond databases...We should have a lot of systems, and today you can do it."

(See the Huffington Post story cited in my above December 28, 2016 ilw.com post.)

When the founders of this country enacted the First Amendment to the Constitution guaranteeing free exercise of religion, were they thinking of instituting"a lot of systems, beyond databases", to track members of a specific religious group or groups whose teachings they, or some of their constituents, might have happened to disagree with?

Or, to return to the due process issues raised by the new president's promise to deport up to 3 million unauthorized immigrants who may have been charged with crimes, though not necessarily convicted of any crime, even an attorney general with a long record of opposition to immigration such as Jeff Sessions cannot send them back to their home countries without affording them hearings before an immigration judge.

As is well known, there is such an acute shortage of immigration judges that some hearings for people who are now in removal proceedings are being scheduled for dates that are up to 5 or 6 years in the future from now.

http://www.nytimes.com/2016/12/01/us...ckle.html?_r=0

But there is a way to "persuade" people to accept deportation by "voluntarily" giving up their right to a hearing. Just lock them up in concentration camp-style private prisons or detention facilities, without any hope of being released, until they agree to leave.

Even under the present administration there are many reports of inhuman conditions in federal immigration detention facilities which have led to lawsuits challenging these conditions, as the American Immigration Council reported in a June 8, 2015 statement in connection with ongoing litigation:

https://www.americanimmigrationcounc...ion-facilities

As I also pointed out in my December 14, 2016 Immigration Daily post, Vladimir Putin is planning to do something similar in Russia by building a network of more than 80 deportation prison camps, one near each major Russian city. See:

http://rapsinews.com/legislation_pub...268590432.html

How is this different from what Donald Trump told the Los Angeles Times shortly after the election:

"What we are going to do is get the people who are criminal and
have criminal records...
probably a million, it could even be 3 million, we are getting them out of our country or we are going to incarcerate."

http://www.latimes.com/politics/la-n...113-story.html

As I have pointed out above, Trump's definition of which immigrants have "criminal records" might turn out be much broader than that of the laws of the country whose presidency he is shortly about to assume.

In other words, under our laws and, as I have pointed out in my above Immigration Daily post, under a western legal tradition which arguably goes back almost 2,000 years to the time of the late Roman empire, someone charged with crime is still innocent until proven guilty.

Are there up to 3 million immigrants in that category whom Trump may be proposing to lock up indefinitely until they leave?

Will the above examples become the new meaning of constitutional rights for immigrants and immigration advocates in America once the new administration takes office?____________________________
Roger Algase is a New York immigration 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, obtain work visas and green cards.

Roger believes that America must continue to recognize and support the fundamental constitutional and human rights of immigrants and American citizens alike. His email address is algaselex@gmail.com

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Updated 01-07-2017 at 05:09 PM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    I don't recall your objections to Obama's repeated attacks on free speech?

    Obama's Legacy: The Trashing of Free Speech


    "No administration in memory has more thoroughly undermined freedom of speech and of the press than that of President Obama. From the White House itself, as well as the independent and executive branch agencies, have come a steady stream of policies, initiatives, and pronunciamentos that have threatened or compromised both of these constitutional rights."
  2. ImmigrationLawBlogs's Avatar
    I don't mean to offend anyone's religious beliefs, and my comment below should not be taken in that sense. Nor am I an expert on the New Testament to any degree.

    However, according to my limited knowledge and understanding of the Bible, John the Baptist, important as he is, is not the main figure in the New Testament.

    Nor, I believe, will Barack Obama be the main figure that future historians of attacks against freedom of speech and democracy in America beginning in the second decade of the 21st century will be concerned with.

    Roger Algase
    Attorney at Law
  3. MKolken's Avatar
  4. ImmigrationLawBlogs's Avatar
    See the following Salon.com article about:

    "Donald Trump's surveillance state"


    http://www.salon.com/2016/11/27/dona...eady-in-place/

    Roger Algase
    Attorney at Law
    Updated 01-03-2017 at 09:08 AM by ImmigrationLawBlogs
  5. MKolken's Avatar
  6. MKolken's Avatar
  7. MKolken's Avatar
    But I get it Roger, it is perfectly acceptable when a Democrat violates the Constitution.
  8. ImmigrationLawBlogs's Avatar
    I am not disputing Obama's role as "John the Baptist" for Trump. That is why I mentioned it.

    Roger Algase
    Attorney at Law
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