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9th Circuit Rejects President's Claim of Absolute Power to Ban Muslims and Refugees From US on Trumped-Up National Security Grounds. Roger Algase

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The following comment about the 9th Circuit's rejection of Trump's attempt to "rig" America's visa entry system (to use Trump's favorite word when he doesn't like an election result) against refugees, and against Muslim immigrants from all over the world (not just the seven listed Muslim countries) includes a few minor changes as of February 27 at 7:54 am

In a resounding declaration that the president of the United States is not a king or emperor with absolute power to determine which foreign citizens can enter the United States, or to discriminate against nearly 200 million Muslims from seven different countries by using a Trumped-up of national security, a unanimous 3-judge panel of the US Court of Appeals for the 9th Circuit refused to lift a temporary restraining order of the district court barring implementation of Donald Trump's January 27 executive order banning citizens of the affected countries and refugees from every country in the world from coming to the United States.

For a link to the full text of the decision, see the following POLITICO story:

http://www.politico.com/story/2017/0...-ruling-234870

The 9th Circuit's order was not only a ringing declaration of judicial independence from a president who has sought to undermine the only branch of government that is not compliantly bending to his will, but it is a reaffirmation of the values of democracy and equality of all people on which America was founded.

The decision also, at least temporarily, blocks the dangerous march toward one-man dictatorship that has typified the Trump presidency in the three short weeks that he has been in the White House. By making clear that there are limits to the power of the president to bar immigrants from entry to the United States under INA Section 212(f), and by calling a halt to his attempt to single out all immigrants from designated Muslim countries as "dangerous" for America's "national security" without showing any rational basis for such a broad finding, the 9th Circuit has also taken a major step toward protecting the religious freedom and other Constitutional rights of Muslim US citizens and other Muslims who are in the US with legal status, as well as Americans and legal immigrants of all faiths and backgrounds, against the threat of persecution and discrimination by the Trump administration because of their religious or political beliefs.

Protecting the free speech and other Constitutional rights of pro-immigration US citizens will very likely also become a very big issue now that Jeff Sessions has now been confirmed as Attorney General, with power to use the massive weapons of the federal criminal laws, notably INA Section 274, against American citizens who support immigrant rights.

I will discuss INA Section 274, a very broad statute which, among other things, makes it a federal felony to "assist" anyone who is trying to remain in the United States illegally, in more detail in an upcoming comment.
____________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been representing mainly skilled and professional immigrants from diverse countries of the world in employment-based visa and green card applications for more than 35 years. Roger's email address is algaselex@gmail.com


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Updated 02-27-2017 at 06:54 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    How many Christians are also banned under Trump's travel ban?

    Parenthetically, how many Jews are nationals of the 7 countries that were subject to the ban?

    I'm asking.
    Updated 02-10-2017 at 06:27 AM by MKolken
  2. ImmigrationLawBlogs's Avatar
    The 9th Circuit did not make a definitive finding that the ban was aimed specifically at Muslims as a religion, but it said that there was a great deal of evidence that this was the case which needed to be explorered further as the litigation proceeds.

    Religious discrimination per se was not the reason why the Circuit Court blocked Trump's order. The reason, as I read the decision, was that Trump's order infringed on the Constitutional interests of American citizens and permanent residents in allowing immigration from the seven the affected affected countries and by refugees by imposing a ban against those people, without showing a legitimate reason for such infringement of the rights of Americans in in permitting the affected people to enter the US..

    See Kleindienst v. Mandel and Kerry v. Din, mentioned in both the oral argument and in the 9th Circuit's decision.

    For those who look at the history of the 1924 Johnson-Reed immigration act which, very arguably, provided inspiration for Trump's executive order (since two of his closest advisers, Sessions and Trump, are on record as supporting a return to that law or something like it), per country immigration quota restrictions were used for the purpose of banning both unwanted racial and religious groups.

    Nothing in the law said that Jews, Catholics or Muslims were banned on the basis of religion.

    But quotas for the countries where many adherents of these religions lived were cut to the vanishing point.

    The quotas for Eastern Europe, where most Jews lived, and for mainly Catholic Southern Europe were only a fraction of those for mainly Protestant Northern Europe. Quotas for Muslim Middle Eastern countries were cut to almost zero.

    The fact that quotas for other parts of the world, such as China, India and Japan, were also cut to almost zero did not make the ban against areas where Jews and Catholics lived any less intentional, especially with regard to the Jews.

    The legislative history of that law, and the way that it was actually applied during the Holocaust period make that obvious.

    Yes, if one looks at the population of the seven countries affected by Trump's ban, one might find a tiny handful of Jews here and there, along with a small number of Christians living a precarious existence (as long as they stay away from ISIS-controlled areas).

    But no one could seriously dispute that the almost 200 million people in the seven countries affected by Trump's ban are almost entirely Muslims, and that this is not accidental.

    With regard to Trump's world-wide ban on refugees, the anti-Muslim animus may b a little less obvious (outside of the fact that Syrian refugees, most of whom are Muslim, are the only ones banned permanently under the order).

    But let's give Trump some "credit" for a broader "vision" of hate that goes beyond just Muslim immigrants. Certainly, Trump and his minions hate Muslims, as Hitler did the Jews, but just as Jews were not the only people whom Hitler singled out to be persecuted,murdered and exterminated, Muslims are not the only non-European immigrants whom Trump, Bannon and Sessions would like to keep out of the United States.

    Roger Algase
    Attorney at Law
    Updated 02-10-2017 at 08:57 AM by ImmigrationLawBlogs
  3. MKolken's Avatar
    Do you know how many?
  4. MKolken's Avatar
    And incidentally, how many actual visas did Obama issue to nationals of those countries in the last reported year?
  5. ImmigrationLawBlogs's Avatar
    I don't know how many visas President John the Baptist Obama issued to people from the seven countries. But the media reports said that Trump's administration rushed to revoke someehere between 60,000 and and 100,000 visas for people from the affected countries as soon as the court challenges were filed.

    I very much doubt that all of those visas were issued during the Clinton or G.W. Bush administrations only.

    Roger Algase
    Attorney at Law
  6. MKolken's Avatar
  7. MKolken's Avatar
    It appears that the DOS was already discriminating against Syrians under Obama:

    Despite the Obama administration's supposed openness to welcoming Syrians into the United States, it has quietly ramped up denials for Syrian visa applicants, closing America's doors during a civil war that has killed almost a half a million people. Administration records reveal that Syrians are being refused temporary visas at a higher rate than applicants from any other nation of Syria's size, and at a rate far higher than that for applicants from other war-torn nations in its region. Congress should investigate this troubling trend.
  8. ImmigrationLawBlogs's Avatar
    With Trump in power, Congress is more likely to investigate why any Syrians were granted visas at all and why those that were granted have not yet been revoked in toto (if there are indeed any such visas that Trump has not yet revoked). If the courts do not continue to step in to stop America's new tyrant from slamming the doors shut against any immigrant who cannot produce the necessary white skin color needed to enter Donald Trump's America, then the Obama years will seem like a golden age of American immigration compared to what may well lie ahead.

    Roger Algase
    Attorney at Law
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