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Trump's immigration ban Executive Order is clumsy, but perfectly legal. By Nolan Rappaport

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President Trump’s Executive Order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” has produced a storm of protest. Senate Minority Leader Charles Schumer (D-N.Y.) said in a statement on Friday that “there are tears running down the cheeks of the Statue of Liberty tonight.”

What is in this EO that is so upsetting?

The EO’s stated policy is “to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States.”

It directs the Secretary of State and the Director of National Intelligence to determine what information is needed from any country to decide whether one of its nationals who is seeking admission to the United States is who he claims to be and is not a security or public-safety threat.


Originally published in the Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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  1. ImmigrationLawBlogs's Avatar
    Trump's January 27 order may be legal, though there is a good argument that the president's power under INA 212(f) to exclude any immigrant he wants to because he doesn't like their country, their religion or the color of their hair (or skin) may not be quite as broad as some White House supporters of immigration by presidential diktat might like to think it is. I will be writing more about this in a forthcoming blog comment.

    But even if the decree is legal, does that make it right? The 1924 Nordics-only "national origins" Johnson-Reed immigration act which, among other things, was arguably responsible for increasing the number of Holocaust victims and which Hitler cited as inspiration for his own racial policies in Mein Kampf, was also legal. So were the Chinese exclusion laws and the laws stating that only white persons could become naturalized US citizens.

    As I explain in my own updated January 29 post, two of Trump's top advisers, Stephen Bannon and Stephen Miller, who reportedly helped Trump draft the January 27 degree have close ties with people or organizations which have supported the same 1924 law that Adolf Hitler was so enamored of either directly or by implication. Anyone who thinks that 1924-type immigration attitudes had no influence in preparing Trump's January 27 decree should also read my same updated January 29 comment, which is entitled:

    Trump's Ban Against and Denial of Basic Rights to Immigrants From 7 Muslim Countries Cause Outrage and Fear of Return to 1924 Law

    (Sorry, I do not have a direct link.)

    Roger Algase
    Attorney at Law

    Updated 01-30-2017 at 01:22 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    By way of update, a federal district judge, Dolly Gee, has ordered the federal government to return an Iranian man who was deported back to Iran under Trump's July 27th order to be returned back to the United States. Her order states that the man, Ali Khoshbakhti Vayeghan:

    "demonstrated a strong likelihood of success in establishing that removal violates the Establishment Clause, the immigration and Nationality Act and the right to Equal Protection guaranteed by the United States Constitution.

    If this order is upheld, then the plenary power doctrine that has put admission of foreign citizens to the US beyond the protection of the Constitution for the past century and a quarter may finally be on its way out.

    Then, Trump will really have accomplished something significant regarding immigration law!

    Roger Algase
    Attorney at Law
    Updated 01-30-2017 at 04:44 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    You are worrying about the wrong thing. The ban is temporary to give DHS and DOS time to developing effective screening methods. You should be concerned about the screening methods they are developing, not the temporary suspension.

    Nolan Rappaport
  4. ImmigrationLawBlogs's Avatar
    Nolan, if our security screening officials have been reading your various comments on the efficacy of screening methods for people from predominantly Muslim countries, then we can be quite sure that such methods will never be put in place because you have already" demonstrated" that totally effective methods are impossible.

    Even if these officials haven't yet read your articles on this subject, do you seriously think that top Trump administration advisers, such as Steve Bannon, who has now been promoted to the National Security Council, and who has stated that "Western civilization" is at war with "Islamic civilization", or Michael Flynn, who has called Islam a cancer rather than a real religion, are ever going to decide: "Eureka! effective vetting has now been achieved."?

    (If you don't know the literal meaning of "Eureka!", you can consult the medieval Islamic philosophers who preserved ancient Greek thought long after it had been lost to the West, until Christian scholars in Europe finally recovered it again by translating writers such as Aristotle into Latin from the Arabic - a language that Maimonides, arguably the greatest Jewish philosopher of all time, wrote his most famous work in).

    But I do not mean to digress. You are as familiar with the ways of Congress as anyone else on this planet. You know better than anyone else on earth that when someone wants to introduce a controversial proposal and get it through they put a time limit on it so people won't think it is so terrible because it will sunset anyway. Somehow, once people get used to the temporary proposal it becomes permanent.

    At the same time, when Congressional leaders want to make sure that something will never happen, they call for a "study" on it.

    The first strategy is obviously the one being used for the 7 Muslim country ban, which of course will be extended or made permanent (and which can and no doubt will be extended to additional Muslim countries according to Trump's order).

    The second strategy is the one being used for the perfect "vetting process". We will never hear the word "Eureka!" ("I found it!") coming out of the White House on this issue.

    I will end this comment with another Greek quotation, from the poet Hesiod (c. 700 B.C.)

    Ex Chaos d'Eberos te melaina te nux egenonto.

    "From Chaos and [the god] Eberos came forth Black Night."

    (No, I did not translate this from Arabic, which I do not read or speak - but I found it in the Greek original - with just a little help from the bilingual English version)!

    Thanks to Trump's Muslim countries executive order, Chaos has already descended on America's airports, as totally innocent people including an Iraqi translator who risked his life to help our soldiers in his country and who had a valid visa after what one can be sure was extensive background investigation, being led away in handcuffs, being detained for hours without access to counsel in defiance of a federal court order according to reliable news reports, or even sent back to their countries - only because of their nationality and their religion.

    If Trump's cruel and cynical order is not rescinded, then a Melaina Nux -Black Night - of fear, hatred and unreason will indeed have descended on America and on everyone around the world who looks up to and reveres America as a land of freedom, equality and justice.

    Roger Algase
    Attorney at Law
    Updated 01-30-2017 at 08:33 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    I don't know what screening methods Trump is going to find acceptable, but I do know that he doesn't have unlimited resources and he will get smacked down hard by congress if he slows down the flow of legitimate visitors and commerce into the US. It is highly likely that he will have to settle for security measures that only incrementally improve the ones we have now, but that could disqualify a large number of people.

    Nolan Rappaport
    Updated 01-30-2017 at 11:43 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    The major change will be with refugee screening, but that won't be a matter of how effective the screening is. I expect him to refuse to take refugees that we have no way of getting any reliable information on. Syria is an example of a country that we can't get information from. I don't expect him to accept many refugees from Syria.

    Nolan Rappaport
  7. ImmigrationLawBlogs's Avatar
    At the outset, Trump's order is being denounced by a long line of national Security experts (as well as some Congressional leaders with national security experience). Among the kinder comments from some of the experts about Trump's order are that it is "stupid", "immoral" and "counter productive".

    Despite the constant reiteration of the "National Security" and "Combating Terrorism"
    mantras in Trump's order, the national security justification for barring immigrants from seven entire nations (even ones that admittedly have hardly been free from terrorist activity - see INA 217(a)(12) - as well as banning refugees from all over the world ("temporary " bans which of course will be extended for as long as Trump remains in office if Steve Bannon continues to have his way), the connection between Trump's drastic action and genuine national security considerations is so tenuous as to raise questions about whether Trump exceeded even his admittedly very broad authority under INA Section 212(f) by acting arbitrarily and capriciously in imposing these bans.

    Assuming that Trump, acting entirely on his own (or with only the help of his white nationalist adviser in chief Bannon) has wisdom superior to that of almost his entire national security establishment raises questions about the strength and future of America's democracy itself.

    Is Donald Trump endowed with such superior innate wisdom that he knows what screening procedures are best for America's national security so he can issue such a sweeping order, on such short notice, without even bothering to consult with his own experts? See more on this below.

    And if the additional security screening that comes out of this order turns out to be merely "incremental", as Nolan states (and this conclusion makes a great deal of sense) what is the point of issuing such a drastic and far reaching order, which can affect the lives of thousands, or hundreds of thousands of not only foreign US visa holders, or visa applicants, who have already gone through or would have to, under current procedures, go through already intensive interviews, security screening and background checks, but also hundreds, or thousands of US citizens or permanent residents who are sponsoring these immigrants or visitors to come to the US?

    Is there any showing that America is in such immediate and grave danger from citizens of the seven countries concerned (only two of which, Iraq and Syria) have been sources of actual terror attacks against the US (and none of which were involved in 9/11) that drastic measures such as the ones in this executive order are necessary pending review of security procedures to see if they can be improved - something which one would assume is being done by officials concerned on a continuing basis anyway?

    And what evidence is there that appropriate officials were consulted in drafting this order?

    According to news reports, John Kelley the new DHS chief, knew nothing about this order until it was issued. Neither did House Judiciary Committee Chairman Bob Goodlatte.

    And if national security was really the motive behind this order, rather than just Muslim exclusion under a different guise, why has Stephen Bannon, who has zero national security experience but a full record of promoting white supremacist causes, been promoted to the National Security Council where, according to one news report (citation to be provided) he is now running his own cabal and shutting out the professionals on that body?

    I have no pretensions at being a national security expert, but it would seem on the basis of the news reports that one is seeing now that the way this order was drafted and handed down, and Trump's heavy reliance on people with no national security experience such as Bannon to the exclusion of the experts, could be making America less safe rather than safer.

    There is very good reason to suspect that the "vetting" and "national security" justification for this order - especially as applied to non-refugees who can be "vetted" in their own countries, is just a red herring.

    With regard to Trump himself, Nolan urged throughout the campaign not to take Trump's immigration statements at face value. In fact, he often criticized me for doing exactly that, saying that I was "distorting" Trump's statements when I was in fact just quoting Trump's own words.

    Has Trump suddenly changed so much in the past 10 days since becoming president that we can blindly rely on his superior wisdom, veracity and good faith to come up with national security screening procedures that even his own experts do not appear to be participating in?

    I know of one country where the head of state is considered to have almost divine wisdom and vision, to know what is best for his people based purely on his own deep insights and inexhaustible knowledge, without the need to consult or ask anyone - and where questioning this wisdom is considered the most serious offense imaginable against the state, resulting in the most drastic possible penalties.

    But that country is not the United States of America. It is located on the other side of the world, just north of the 38th parallel which separates the two Koreas.

    Roger Algase
    Attorney at Law
    Updated 02-01-2017 at 01:32 AM by ImmigrationLawBlogs
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