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Judge Orders Trump to Turn Over Giuliani Memo Allegedly Showing That Muslim Entry Ban was Based on Religion, not Nationality. Roger Algase

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In a May 11 story, Bloomberg reports that a federal judge in Detroit, Victoria Roberts, has ordered the Trump administration to turn over a memo drafted under the guidance of Rudy Giuliani which allegedly outlined a way to make Trump's proposed ban on entry to the US from selected almost 100 per cent Muslim Countries (often misleading called a "Travel Ban" by the media - Trump's memos ban much more than that) look as if it was not directed against the Muslim religion, but only against certain nationalities.

https://www.bloomberg.com/politics/a...ravel-ban-suit

According to the Bloomberg report, a court filing by the Arab American Civil Rights League in the lawsuit before Judge Roberts alleges the following:

"While running for president, Donald Trump asked Giuliani to form a commission that would help draft a 'Muslim ban' to 'show him the right way to do it legally'...The commission then recommended that 'nationality be used as a proxy for religion' ..."

If this memo is ever actually produced, and if it shows that the above allegation is accurate, this would be one more piece in the already large and apparently still growing jigsaw puzzle of bad faith on the part of the president in promulgating the entry ban orders and attempting to defend the latest one in the US 4th Circuit Court of Appeals.

It should not come as any surprise that the president is so desperate to claim unlimited executive power to bar anyone he wants from coming to the US under the mantle of INA Section 212(f) and to resist any effort by the courts to hold him to the basic requirement of good faith set forth by the Supreme Court in Kleindienst v. Mandel (1972).

The egregious lack of good faith shown by the history of Trump's latest six Muslim country ban is also discussed at length in the amicus brief of constitutional law scholars filed with the 4th Circuit which I refer to in my May 11 ilw.com comment

http://blogs.ilw.com/entry.php?9889-President

It is also worthy of note that this would not be the first time in US immigration law history that barring immigrants based "national origin" has been used as a pretext for doing so on the basis of religion or ethnicity.

One need look no further than the notorious "national origins" Immigration Act of 1924, whose legislative history showed beyond any possible doubt (as virtually all historians agree) that nationality was only an excuse to bar unwanted Jews, Catholics and most of the world's other non-"Nordic" immigrants from coming to the United States.
__________________________________
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 receive work visas and green cards without regard to their religion, ethnicity or national origin. Roger's email address is algaselex@gmail.com

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Updated 05-19-2017 at 07:49 PM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Are Muslims in Indonesia, Pakistan, and India (home to approximately 33% of the world's Muslim population) also subject to Trump's Muslim ban?

    Famed Harvard Constitutional Law Professor and lifelong Democrat Alan Dershowitz:

    “The idea of focusing so heavily on campaign rhetoric and essentially saying, look, if Obama had issued the very same order with the same words it would be constitutional, but if Trump issues it, it’s unconstitutional because he said some things about Muslims in the run-up to the campaign, that’s not the way the law is supposed to operate. And finally, the Trump Justice Department is getting smart. They are appealing this not to the Ninth Circuit where they are likely to get an adverse ruling. They are appealing it to the Fourth Circuit. The Fourth Circuit is a much more conservative court. And much more likely to uphold the travel ban, and then if the case goes to the Supreme Court and ties four to four, Trump wins.”

    “I actually said that this wasn’t constitutional analysis. It was psychoanalysis. There is precedent in extreme cases where legislators in enacting a statute say things that you can sometimes look to the legislative intent. But I have never heard of a case where the rhetoric of a candidate, ambiguous rhetoric to be sure — because I do not believe this is a Muslim ban —focusing on a country like Iran, the greatest exporter of terrorism, not only no vetting, it sends terrorists out in order to kill Americans. Iran has so much blood on its hands of Americans and American allies, to exclude a country like Iran from the list would be absurd. And the list —although for a different purpose — was originally designed by President Obama. So how can you say that the exclusion of six countries on the list was motivated by what Mr. Trump said when he was candidate Trump? That is not good legal analysis. I’m putting my reputation on the line—I predict the case gets to the Supreme Court, the Supreme Court will uphold the major provisions of this ban.”
    Updated 05-12-2017 at 03:42 PM by MKolken
  2. ImmigrationLawBlogs's Avatar
    This question is something that would also be within the federal court's fact finding jurisdiction concerning the issue of good faith, which the courts are obliged to examine, as persuasively argued in the constitutional law scholars' brief in the 4th Circuit, Alan Dershowitz notwithstanding.

    We are not talking about judicial "psychoanalysis' here. With all due respect to that distinguished legal scholar, that is absurd.

    If someone says. repeatedly "I hate Muslims and I don't want them in my country" we don't need Sigmund Freud to figure out what is on his mind.

    Dershowitz is in effect saying that the courts should adopt a legal fiction, namely that the ban wasn't motivated by anti-Muslim hate.

    The fact that the Trump administration was unable to find even a spurious pretext for issuing the ban in the case of other Muslim countries doesn't mean that religion wasn't the main factor in the six or seven country ban. The entire history of the ban is relevant.

    Here's a hypo: A president with a egregious record of anti-Semitic remarks, including one claiming that Jews all over the world are a danger to the US and should be barred from this country, bans all citizens of Israel from entering the US, but doesn't ban Jews from anywhere else.

    Not a religious ban? No one would make such an absurd argument, even though a majority of the world's Jews would not be affected and a large number of Palestinian Christians and Muslims who are living in or citizens of Israel would be affected.

    Roger Algase
    Attorney at Law
    Updated 05-12-2017 at 04:23 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    The Chinese exclusion laws were also ostensibly based on nationality, not race/religion. They did not ban every person in the world of Chinese ancestry from immigrating to the US, but only citizens of one country: China.

    Even with regard to China, the ban only applied to Chinese "laborers", not "merchants".

    Yet, the Supreme Court, in Chae Chan Ping (1889) expressly stated that race was the real reason for the ban (and, based on the prejudice of those dark times in our immigration history, upheld the exclusion laws mainly for that very reason).

    Today, our politicians are not as honest about their racial/religious prejudices prejudices as they were in those days when it comes to immigration - except for the president, that is, who made his hatred for Muslims from every country in the world, including US citizens, a centerpiece of his campaign, and certainly gave no indication after becoming president that he had changed his views in the slightest.

    To the contrary, by appointing someone like Mike Flynn, who has called the Muslim religion a "cancer" as a top presidential adviser, (and even today, May 19, Trump is now saying that he regrets giving into pressure to fire Flynn!) Trump is making clear where he stands on Muslims.

    Is there any legitimate reason why the courts should not now take him at his word?

    And what is the point of trying to invent all sorts of excuses for Trump, when he is only doing, with regard to as many Muslims as his legal advisers think the courts will let him get away with - and 100 million people in six countries is not a small number -what he has been promising to do right from the start?

    Roger Algase
    Attorney at Law
    Updated 05-19-2017 at 08:17 PM by ImmigrationLawBlogs
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