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Do you remember my article, "If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens"

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Do you remember my article last year, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens”?
By Nolan Rappaport

I made two predictions. First, that if elected, Donald Trump would use section 212(f) of the Immigration and Nationality Act (INA) to establish a temporary ban on Muslim alien admissions.

Second, that he would base the ban on the provision in the INA for excluding nationals from the Visa Waiver Program who have been present in Iraq, Syria, or other designated countries at any time on or after March 1, 2011, instead of imposing a ban on all Muslim aliens.

The article also provides information about the nature of the 212(f) authority and a brief history of how previous presidents have used it.

If he is elected to the presidency, Donald Trump will have statutory authority to
suspend the entry of all Muslim aliens (April 20, 2016).
By Nolan Rappaport

In a news release on December 7, 2015, Donald J. Trump called for “a total and complete
shutdown of Muslims entering the United States until our country's representatives can
figure out what is going on.”

To put this in perspective, this is just a campaign talking point. It is by no means a certainty that he actually would do this if he were to be elected. Nevertheless, he may intend to impose a temporary ban of some kind on Muslim admissions to the United States if he is elected and our country's representatives still have not figured out “what is going on.” Would he have the authority to do it? Yes, in fact, the discretionary power of the president to suspend alien admissions to the United States is much greater than his prosecutorial discretion over the enforcement of the immigration laws. The president has explicit statutory authority to suspend all or any class of alien admissions by issuing a proclamation saying he has found that the suspended alien admissions were detrimental to the interests of the United States, and his suspension can last as long as he deems necessary. Moreover, waivers are not available. This authority is provided by section 212(f) of the Immigration and Nationality Act (INA), which reads as follows:

Whenever the President finds that the entry of any aliens or of 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 as he shall deem necessary, 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.
Whenever the Attorney General finds that a commercial airline has failed to
comply with regulations of the Attorney General relating to requirements of
airlines for the detection of fraudulent documents used by passengers traveling to
the United States (including the training of personnel in such detection), the
Attorney General may suspend the entry of some or all aliens transported to the
United States by such airline (Emphasis added).

The fraudulent document part of this provision was added by section 124(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

Although section 212(f) has been in the INA since it was enacted in 1952, it only has
been employed in relatively limited circumstances. Usually, it has been used to bar the
entry of persons who have engaged in conduct deemed contrary to United States interests,
such as undermining democratic institutions in a particular country, or engaging in
human rights abuses, or other conduct deemed objectionable. It also has been employed,
however, in other types of situations, such as interdicting Haitian nationals on the high
seas and returning them to Haiti.

Read more at – http://www.ilw.com/articles/2016,0420-Rappaport.pdf

About the Author
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 twenty 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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Updated 02-07-2017 at 09:45 AM by ImmigrationLawBlogs

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  1. ImmigrationLawBlogs's Avatar
    Update: February 6 at 2:51 pm:

    For more on the background of Trump's horrendous, authoritarian Muslim ban order, see:

    Jamie Boule:

    Government by white nationalism is upon us

    in the February 6 issue of slate.com

    (I don't have a link - please use Google to access this article.)

    I have also written about the broad scope of Section 212(f) in my own ilw.com comments and I warned about the dangers of putting this vast power in the hands of someone like Donald Trump, who is starting to give ample evidence of believing that the presidency of the United States is merely en expression of his own will - something that we have heard before:

    ("Ich bin Deutschland und Deutschland bin ich", to be precise.)

    However, in upholding the notion of totalitarian control over immigration admissions by America's new Leader (an idea which is creating quite a Furor -pardon my German pun - in front of the 9th Circuit Court of Appeals as we speak, Nolan leaves out the question of whether such a broad interpretation of 212(f) would be consistent with the US Constitution.

    According to the "Plenary Power" over immigration doctrine, which dates from the dark days of the Chinese exclusion laws (the spirit of which Trump has revived in his January 27 diktat against Muslim immigrants), non-citizens have no Constitutional rights to enter the United States or to challenge the decisions of the immigration bureaucracy.

    But when the rights of US citizens are involved, that doctrine goes out the window. Wong Kim Ark, S. Ct. 1898, and the courts are able to get very much involved in reviewing executive branch immigration decisions. See also: Kerry v. Din, S. Ct. 2015.

    As the states of Washington and Minnesota and a whole host of private organizations are arguing in the Muslim ban case, there are a large number of vital, fundamental rights of American citizens involved. We may start to see limits on Section 212(f), at least as used (and abused) by Donald Trump, coming out of that court. If so, will Trump have the votes in the Supreme Court to overturn the 9th Circuit?

    I wouldn't bet on it, even if Judge Neil Gorsuch, a fierce supporter of judicial power to review executive branch immigration actions, is confirmed.

    Will Trump one day soon be calling his own Supreme Court pick a "so-called Justice"?

    Roger Algase
    Attorney at Law



    Updated 02-07-2017 at 09:47 AM by ImmigrationLawBlogs
  2. DBL07's Avatar
    Will this effect immigration from Haiti and Cuba?
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