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Should the Federal Courts Ignore Trump's Call For a World Wide Ban on Entry to the US by Muslims in December, 2015? Roger Algase

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Update: May 9, 2:25 pm.

I have expanded my comments below to include a more detailed discussion of the legal precedents and governing principles of law which apply to the president's latest six Muslim country entry ban executive order.

In the first part of my two-part discussion of the oral argument which took place before the US 4th Circuit Court of Appeals on May 8, over the president's latest version of his executive order banning citizens of targeted 99 per cent Muslim countries from entering the United States, I referred to the main issue which the judges seemed to be concerned with.

This issue was not whether or not the president has a history of prejudice and animosity toward Muslims as a religion in the period leading up to his executive orders as president banning citizens of selected Muslim countries from entering the United States, because the December 7, 2015 statement, quoted in full below, shows that he obviously does have such a history.

Rather, the issue was whether the broad executive branch power over immigration which the courts have recognized ever since the time of the infamous Chinese exclusion law cases in the late 19th century prohibits the courts from questioning presidential motives for issuing executive orders relating to non-U.S. citizens seeking admission to the United States.

The DOJ argued that the courts are precluded from looking into the history of an immigration executive order of this type, but are limited to reviewing the four corners of the order itself.

In order to see whether this argument has any merit, one must first look at the history of Trump's two entry ban orders from selected Muslim countries themselves. This history begins, but does not end, with the following statement, which appeared on Trump's campaign website beginning December 7, 2015 (a date that can hardly have been coincidental), and continued to appear on that same website right up until May 8, 2017, when it was suddenly removed in response to a reporter's question.

Here is the statement in full, exactly as it appeared on the website:

DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION

(New York, NY) December 7th, 2015, - Donald J. Trump is calling for a complete and total shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred toward Americans by large segments of the Jewish population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence here in the United States is justified as part of the global jihad" and 51% of those polled "agreed that Muslims in America should have the choice of being governed according to Shariah". Sharia authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anyone the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people who believe only in jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to make America great again." Donald J. Trump

What are the key points in the above statement that leap off the page in a way that no one who has any familiarity with the English language whatsoever can possibly mistake?

First and foremost, Muslims are singled out as America's mortal enemy, full of hatred against America and Americans.

One can only recall the opening sentence of another famous statement written in 1927 by the right hand man and chief propagandist of the German politician I refer to in the first part of this two-part comment, the same politician who wrote with approval about the racial theories embodied in the Johnson Reed 1924 Immigration Act which two of Trump's top immigration advisers Jeff Sessions and Stephen Bannon, have expressed admiration and support for (ostensibly for different reasons).

In an essay entitled: Why Do We Oppose the Jews, the 1927 writer began:

We oppose the Jews because we are defenders of the freedom of the German people. The Jew is the cause and beneficiary of our slavery.

http://research.calvin.edu/german-pr...e/angrif17.htm


In Trump's above statement, Muslims are labelled as attackers and destroyers of America, just as the essay of 90 years ago labelled Jews as enslavers of Germany. Where is the difference?

Moreover, Trump's statement implies that Muslims are in effect programmed toward violence and murder of Americans by their religion itself, just as the 1927 statement claimed that Jews, by their very nature, were bound to be a danger to the well being of the German people. As the same essay screamed near the end: Die Juden sind Unser Unglueck. ("The Jews are our misfortune.")

While, of course, unlike the two German figures I have mentioned, Trump does not advocate mass murder or genocide, and he certainly is not an anti-Semite, it is impossible to ignore the similarities in tone between these two statements issued almost a century apart.

Nor was Trump's December 2015 announcement the only statement he has made (or actions he has taken in making some of his top appointments as president) attacking Muslims along similar lines.

How can a federal court carry out its responsibility to determine the legality of something as important and far-reaching in its effect as Trump's six Muslim country entry ban would have on fundamental Constitutional rights embodied in the First, Fifth and Fourteenth Amendments, while at the same time turning a blind eye toward Trumps's above statement, not to mention other even more recent similar ones which he also made during his presidential campaign?

In this connection, the governing rule is set forth in Kleindienst v. Mandel (1972), where the Supreme Court stated that for a visa denial to be insulated from judicial scrutiny, it must be "facially legitimate" and "bona fide".

Trump's latest executive order, like the earlier one, fails the test of being "facially legitimate", because the very fact that the targeted countries are all almost 100 percent Muslim, without some showing of urgent danger or threat coming from any of them immediately raises suspicions of religious discrimination as the main, if not only, purpose of the order.

With regard to be order being in good faith, how can any court ignore the overwhelming evidence of bad faith, arguably bordering on actual misrepresentation to the court, of the order's purpose and intent, shown by Trump's above quoted December 2015 statement?

The fundamental issue in this case is not INA Section 212(f) as is argued by my distinguished colleague Matt Kolken in his comment below. Rather, the basic issue involves the doctrine of "Plenary Power" over immigration in the legislative and executive branches, dating from the dark days of the Chinese exclusion laws as I mentioned above.

Section 212(f) is a statute, and, like any other law of Congress, must still pass a Constitutional test, unless it is interpreted as setting up a one-man dictatorship over a large part of our entire immigration system - something that our newest Supreme Court Justice, Neil Gorsuch, impliedly warned against in a different context in a decision he wrote as a 10th Circuit Judge in August, 2016.

In the case of this statute, the Constitutional justification depends on the Plenary Power doctrine.

I will take a closer look at the origins and history of this doctrine in my next comment, and offer some thoughts about whether this doctrine, which was first announced in an 1889 Supreme Court decision (Chae Chan Ping v. US) that was by no means free of racially biased comments by the Court, still has any use or serves any legitimate purpose today.
___________________________________
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.

Roger's practice is concentrated primarily in H-1B specialty occupation, O-1 extraordinary ability and J-1 trainee visas, and in green cards through labor certification, and though opposite sex or same sex marriage. His email address is algaselex@gmail.com




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Updated 06-08-2017 at 04:42 PM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Trump doesn't need a "travel ban' to prevent people from coming to the country. He can simply use the existing law signed by Bill Clinton.
  2. ImmigrationLawBlogs's Avatar
    Bill Clinton must have been amazingly precocious, more than anyone could have imagined. The law that Matt refers to, INA Section 212(f), was signed in 1952, when Bill Clinton was 6 years old.

    Roger Algase
    Attorney at Law
    Updated 05-09-2017 at 08:46 AM by ImmigrationLawBlogs
  3. MKolken's Avatar
    I'm referring to IIRIRA/AEDPA. Read the article Roger.

    Or if you would prefer, here is an explanation via Greg Siskind:

    Another controversial change in immigration procedures is the new summary screening program which allows an INS officer to unilaterally rule that an alien is inadmissible to the US and can be removed without any judicial oversight. The expedited procedure applies to aliens arriving at a port of entry as well as aliens who are not able to demonstrate that they have been continuously present in the US for the two preceding years. The only exception to this rule would be for an alien who expresses an intention to apply for asylum. In those cases, an asylum officer will then conduct a “credible fear of persecution” screening to determine if an asylum applicant shall be permitted to be admitted into the US. If the asylum officer determines there is no credible fear of persecution, the alien will be ordered removed. In this case, however, an alien is entitled to judicial review. Remarkably, given the current backlog in the immigration courts, a court hearing is supposed to take place within 24 hours of denial and in no case more than seven days later.

    New Grounds for Exclusion and Deportation

    There are several new grounds for exclusion that have been included in the new law. Effective immediately, those seeking to enter the US as permanent residents must present proof of having received vaccination against a number of diseases including measles, polio and Hepatitis B. Those inciting terrorist activities, falsely claiming US citizenship, those unlawfully voting and those convicted of domestic violence and stalking are all considered excludable. There are also provisions making certain student visas excludable (see the section below on changes affecting students).

    Another area in the bill which will impact legal immigration are provisions relating to the exclusion of individuals deemed likely to become a public charge. The law clarifies that consular officers may deny immigrant visas to persons deemed likely to become a public charge by considering factors such as age, health, family status, financial resources, education and skills. An affidavit of support can also be considered as a factor.

    As noted earlier, there are now new procedures for aliens claiming asylum at the time of entering the US. If an alien expresses an intention to apply for asylum, an asylum officer will conduct a “credible fear of persecution” screening to determine if an asylum applicant shall be permitted to be admitted into the US. If the asylum officer determines there is no credible fear of persecution, the alien will be ordered removed. In this case, however, an alien is entitled to judicial review. A court hearing is supposed to take place within 24 hours of denial and in no case more than seven days later.
    Updated 05-09-2017 at 09:19 AM by MKolken
  4. MKolken's Avatar
    Incidentally Roger, have you ever handled a matter where an individual was deemed inadmissible under 212(f)?

    If so when?
  5. ImmigrationLawBlogs's Avatar
    That is pure revisionist immigration history, Matt. IIRIRA was passed by a Republican-controlled Congress, without any opportunity for discussion or debate, and attached as a rider to a must pass appropriations bill which President Clinton could only have vetoed at the risk of losing his reelection bid only a few week after IIRIRA was passed in September, 1996.

    Yes, Clinton signed IIRIRA, just as Trump has just signed a six-month budget extension bill refusing money for his favorite Mexican Wall because he had no choice except to sign.

    Both Clinton and Trump tried to put a favorable gloss on something that they were forced to do at Congressional gunpoint anyway, but saying that Clinton had anything to do with proposing or drafting IIRIRA (even though he did claim to have helped water down one of its worst provisions through negotiation with Congress) is absurd as claiming that Trump has just signed a budget extension because he no longer cares about building the Mexican Wall.

    With regard to Matt's second point, no, I have never represented a client who was barred from the United States under INA Section 212(f).

    Bravo for Matt if he has tried to help someone like that who really deserved admission, but that still does not give him the right to distort the history of IIRIRA, which was enacted more than 40 years after 212(f).

    Roger Algase
    Attorney at Law
    Updated 05-09-2017 at 09:25 AM by ImmigrationLawBlogs
  6. MKolken's Avatar
    Revisionist history indeed: https://amjolaw.com/2012/09/11/proof...ration-reform/

    "The Democratic party was overwhelmingly anti-immigrant in 1996 and was just as responsible as the GOP, if not more, for the millions of families destroyed because of the horribly anti-immigrant IIRIRA."

    22 Democratic Senators voted in favor of making “IIRIRA” law. Some of these so-called pro-immigration reform Senators include Senator Harry Reid, Feinstein, and Leahy.

    88 House Democrats voted in favor of making “IIRIRA” law. Only a slight majority at 92 voted against.
    Updated 05-09-2017 at 10:01 AM by MKolken
  7. ImmigrationLawBlogs's Avatar
    If my numbers are correct, there were a total of 100 Senators and over 500 Representatives in that Republican-controlled Congress.

    Nor, and Matt can correct me if I am mistaken, was there a separate vote on IIRIRA on its own merits at any time, but only on the omnibus appropriations bill, including defense, which IIRIRA was attached to.

    To imply that the Democrats were responsible for IIRIRA or contributed to it in any meaningful way is to rewrite history.

    Bur let's assume that some Democrats did support that law, just for the sake of argument. What does this have to do with the legality and Constitutionality of Trump's Muslim ban travel orders now, 20 years later?

    Roger Algase
    Attorney at Law
  8. ImmigrationLawBlogs's Avatar
    I do not by any means claim that the Democrats, or Bill Clinton, have a spotless record on immigration. That would be patently absurd.

    If Matt wants to look for Democratic, or Clintonian, evils on immigration, he could mention Bill Clinton's infamous use of the Coast Guard to stop Haitians from leaving their own country in the 1990's when they were trying to escape the dictatorship in power at that time.

    This not only violated international law against refoulement of refugees, but it went against America's and the world's most basic humanitarian values.

    Shamefully, Clinton's action, which was arguably even worse that Trump's current Muslim ban, was upheld by the Supreme Court in what has to be one of its worst immigration decisions of all time. See: Sale v Haitian Centers Council (1993)

    Roger Algase
    Attorney at Law
    Updated 05-09-2017 at 11:11 AM by ImmigrationLawBlogs
  9. MKolken's Avatar
    It goes back to my original point Roger. That Trump can use an enforcement strategy architected by Rahm Emanuel, resulting in a law signed by Bill Clinton, and voted for by 22 Democratic Senators (including Harry Reid, Dianne Feinstein, and Patrick Leahy) and 88 House Democrats, to prevent pretty much any non-citizen he wants from entering the United States, and unless they are already a lawful permanent resident or U.S. citizen, he can exclude them without having to afford much in the form of due process.

    And that goes to my question. Unlike Roger, I have represented individuals deemed inadmissible under terrorist related charges, and have 20 years of practical experience dealing with issues of inadmissibility and removability... and procedurally speaking Trump, and every President since Clinton, can use existing law to prevent whomever they want from coming to the United States, and there is very little, if anything, that Courts can do to prevent it.

    Congress, however, can change the law to limit presidential authority, as it is exceptionally unlikely that the Supreme Court will find that it is unconstitutional. Mind you, in 2015 the Supreme Court already ruled that the executive branch can deny a visa on national security grounds without a specific reason.

    So yes, Roger, I understand what your opinion is with regard to President Trump and his travel ban. Unfortunately, individual opinions unsupported by existing law and procedure generally do not stand up in a court of law, which is where I focus the bulk of my practice.
    Updated 05-09-2017 at 03:17 PM by MKolken
  10. ImmigrationLawBlogs's Avatar
    Matt, since you are evidently relying on on Kerry v Din (2015), you should also read my discussion of Kleindienst v. Mandel, (1972) in which Din depended in large part, and my comment on which appeared in in Immigration Daily a few months ago (I will have to look up the exact date.)

    If you want to argue about Supreme Court decisions, you will have plenty of chance to do this when I publish my forthcoming comments on what I would call the "mother of all bigoted immigration exclusion decisions", Chae Chan Ping (1889), which is also the origin of the "Plenary Power" doctrine that has been so misused in the past and now has the potential for even greater mischief under Donald Trump.

    Roger Algase
    Attorney at Law
    Updated 05-09-2017 at 11:24 AM by ImmigrationLawBlogs
  11. MKolken's Avatar
    I'm not solely relying on Kerry v. Din. It is only one piece of the puzzle that allows consular officers to deny a visa without explanation and still afford due process. The Trump administration merely needs to permit visa applicants to submit an application and then deny under 212(f), or any other ground, without giving a reason.

    All of this litigation is about a temporary suspension of the processing of visa applications. Even if the litigation is successful (unlikely as per Harvard Constitutional Law professor Alan Dershowitz), and a visa is issued, that STILL doesn't preclude visa revocation/cancellation and expedited removal at a port of entry by a pissed off inspecting CBP officer (who endorsed and voted for Trump).

    Incidentally, any idea how many visitor visas were issued to nationals of Somalia or Yemen under Obama. I'll give you a hint: Not many.
  12. ImmigrationLawBlogs's Avatar
    Matt, let us suppose that a hypothetical president (Not Donald Trump, even though his senior White House adviser, Stephen Bannon, is on record as having expressed views not inconsistent with those below), issues the following hypothetical executive order:

    "As president of the United States, in exercise of the authority vested in me by INA Section 212(f) I hereby determine that, in order to preserve, and protect, and to prevent dilution or impairment of, the values, culture, principles and ideals of more than 2,000 of European civilization which were bequeathed to us by the founders of the United States of America, all of whom were of European ancestry and steeped in European culture and values; and based upon my finding and determination that the European values, culture and civilization upon which this nation was founded and on which our identity as Americans depends, are now in danger of reduction or disappearance from our society due to the admission of large numbers of immigrants belonging to different cultural traditions and with different values, all of which is detrimental to the interests of the United States; and on the basis of the above determination, I hereby order that, effective immediately and until further notice, no alien shall be admitted to the US unless he or she can prove exclusively European ancestry with respect to both parents."

    Would you be willing to defend that kind of openly bigoted hypothetical executive order, Matt?

    Don't forget now, 212(f) is a very broad statute, as you have been explaining.

    Yup, very broad indeed.

    Roger Algase
    Attorney at Law
    Updated 05-19-2017 at 09:28 PM by ImmigrationLawBlogs
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