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The days of abdicating our duty to enforce immigration laws are over. By Nolan Rappaport

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© Getty

On May 11, 2017, Attorney General Jeff Sessions made an appearance before Customs and Border Protection officers at the U.S.-Mexico border to announce the issuance of new guidance to federal prosecutors on criminal immigration enforcement.

It is here, along this border, he said, that transnational gangs like MS-13and international cartels flood our country with drugs. They leave death and violence in their wake. “And it is here that criminal aliens and the coyotes and the document-forgers seek to overthrow our system of lawful immigration.”

“I am here to tell you, the brave men and women of Customs and Border Protection: we hear you and we have your back.”

The president has made enforcement of our immigration laws a priority, and we are seeing the results already. Illegal crossings dropped by 40 percent from January to February of this year, and last month, we saw a 72 percent drop compared to the month before the president was inaugurated. This is the lowest monthly figure in the last 17 years.

It is “the Trump era.” The days of abdicating our duty to enforce the immigration laws are over.


But what are his real intentions?


According to Frank Sharry, one of the nation’s leading liberal spokespersons for immigration reform:

“Attorney General Sessions is grandstanding at the border in an attempt to look tough and scare immigrants. It’s yet another example of the Trump administration treating all immigrants as threats and as criminals. This is the smokescreen they use to justify their efforts to deport millions, to keep people out of the country, and, ultimately, to try and remake the racial and ethnic composition of America.”


Sharry’s accusations seem to be based on what he thinks of Sessions, not on what Sessions is doing, which in this case is just prioritizing the prosecution of criminal immigration violations.

Read more at http://thehill.com/blogs/pundits-blo...migration-laws

Published originally on The Hill.

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 an 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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Comments

  1. ImmigrationLawBlogs's Avatar
    Only two small problems with this analysis. First, the Trump administration is not prioritizing criminal out of status immigrants for deportation, but is making clear by both words (DHS Secretary Kelly's to be specific), and actions that everyone who is in the country without legal status is a potential target for deportation.

    Almost every week, there is another news story of non-criminal immigrants being torn away from their families and sent home, sometimes to countries that they have had no contact with for many years or where they are in danger of becoming gang violence victims.

    Any notion that serious criminals only are being targeted (as was the announced, but not always adhered to policy under Obama) is nothing more than Orwellian doublespeak coming from the Trump administration.

    Nolan's other point, namely that Trump's Muslim ban order isn't a Muslim ban order because it doesn't say the equivalent of "I hate Muslims and don't want any of them coming to America" right on its face is also highly flawed and inaccurate.

    In Kleindienst v. Mandel (1972) the Supreme Court set forth the doctrine that executive branch action barring a foreign citizen from entering the US where rights of of US citizens could be affected must be in good faith.

    There is also a long line of cases holding that the courts are entitled to look behind the content of executive orders and actions in general to see whether there is good faith or not, as explained in the amicus brief of a group of constitutional law scholars filed with the 4th Circuit in the Muslim ban case.

    In the 2005 3rd Circuit case of Herring v. US, discussed in detail in my latest May 13 ilw.com post, the court (relying on a Supreme Court case decided a half century earlier in the same lawsuit! - some cases take a long time to resolve) even took up the question whether the federal government's claim of national security privilege involving alleged military secrets could have constituted a fraud upon the court!

    As I also show in my May 13 ilw.com post, circumstances surrounding the administration's claim that Trump's entry ban against 100 million people from six Muslim countries is not based on religion but national security show that this argument is in such egregious bad faith as to constitute a fraud upon the court.

    At the very least, the issue of when the courts can go behind the content of an executive order or action to examine what the real motivation is and whether it is in good faith is far more complicated than Nolan's comment would indicate.

    Roger Algase
    Attorney at Law



    Updated 05-15-2017 at 03:14 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Roger's comments about the travel ban are not responsive to the point I make in my article, but I agree with his other comment. Trump does intend to deport every alien who is in the country illegally, with the possible exception of DACA participants, which he has not tried to hide. This is the point of his expedited removal proceedings expansion. It's the only way he can deport millions of undocumented aliens without hearings before immigration judges while he works on the immigration court backlog crisis.

    Is this wrong? I would prefer seeing enforcement combined with a legalization program, but that's not going to happen while Roger and the rest of the Trump haters keep poking him in the eye with a stick.

    Apparently, Roger didn't cover bear baiting in law school. He can read about it at this link -- https://en.wikipedia.org/wiki/Bear-baiting

    By the way, take a closer look. No chain is holding Trump back. Your taunting will be responsible for millions of deportations that might have been avoided by trying to work with Trump on immigration reform that meets the political needs of both parties. We will never know.

    Nolan Rappaport
    Updated 05-15-2017 at 03:17 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Nolan's article quoted Frank Sharry's comment about the Trump administration's efforts or threats to keep people out of the United States.

    I think it is a pretty safe bet that at least 100 million people in the six almost 100 percent Muslim counties affected by Trump's ban on entering the United States because of their religion, concealed by a national security pretext so thin as to, arguably, come close to being a fraud in the 4th Circuit Court (and maybe the 9th Circuit too), as I have argued in my May 15 Immigration Daily comment, would assume that they are among the people referred to in Sharry's comment - which, as mentioned above, Nolan quoted in his own article.

    I don't see how my reference to the Sharry statement that Nolan himself referred to is unrelated to Nolan's comment.

    As to Nolan's attempt to blame the Democrats for Trump's mass deportation agenda, this is not the place to argue politics, as opposed to immigration policy.

    However, the last time I checked into the president's party affiliation, it was still Republican, not Democratic, as far as I could tell.

    Roger Algase
    Attorney at Law
    Updated 05-15-2017 at 08:07 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Nolan's article quoted Frank Sharry's comment about the Trump administration's efforts or threats to keep people out of the United States.

    I think it is a pretty safe bet that at least 100 million people in the six almost 100 percent Muslim counties affected by Trump's ban on entering the United States because of their religion, concealed by a national security pretext so thin as to, arguably, come close to being a fraud in the 4th Circuit Court (and maybe the 9th Circuit too), as I have argued in my May 15 Immigration Daily comment, would assume that they are among the people referred to in Sharry's comment - which, as mentioned above, Nolan quoted in his own article.

    I don't see how my reference to the Sharry statement that Nolan himself referred to is unrelated to Nolan's comment.

    As to Nolan's attempt to blame the Democrats for Trump's mass deportation agenda, this is not the place to argue politics, as opposed to immigration policy.

    However, the last time I checked into the president's party affiliation, it was still Republican, not Democratic, as far as I could tell.

    Roger Algase
    Attorney at Law
    How were 100 million people effected by the travel ban? Very, very few of them were planning to come here during the 90 day period. And very, very few of them would have been able to get a visa even if Obama had still been the president. Are you unaware of how the list Trump uses was formulated? Those are countries that sponsor terrorism. Obama picked five of them and a bipartisan congress picked the other two.

    Anyone from a Visa waiver country who has spent even a day in one of those countries since 2011 is barred from using the visa waiver program. They have to submit to the background investigation and personal interview required by the visa process. And, not coincidentally, Trump is saying that people who are nationals of those countries need to be vetted properly before they are allowed to come here. The 90 day delay is to give the gov't time to develop a background investigation program to screen them...and people from all of the other countries in the world.

    Nolan Rappaport





    Nolan Rappaport
  5. ImmigrationLawBlogs's Avatar
    Nolan has exhaustively stated what the pretext was for Trump's Muslim ban order. My point is that under the case law, as I have explained it in my own May 15 Immigration Daily comment, the courts not only have the authority, but the obligation to look into all the circumstances relating to a given presidential or executive order, to see whether it was issued in good faith, or with fraudulent intent.

    Merely repeating what was in the order itself, as Nolan is doing, is not a response.

    As for Nolan's argument that Trump's order was not directed against Muslims as members of a particular religion because the order doesn't mention the word "Muslim", the Washington Post reports on May 15 that one of the judges on the 9th Circuit panel hearing the May 15 oral argument in the appeal from the order of the Hawaii federal District Court blocking the Muslim ban pointed out during the argument that President Roosevelt's Japanese internment order nowhere mentioned the word "Japanese" either.

    Nor did the bigoted 1924 Immigration Act which Jeff Sessions and Steve Bannon have expressed so much admiration for mention the words "Jews", "Catholics" or "Asians", even though no historian of that period could possibly dispute the fact that keeping members of those three (and most other non-"Nordic") groups out of the United States was one of the main purposes, if not the principal objective, of that law.

    How naive does Nolan believe that America's courts, as an independent branch of government not bound by every one of Donald Trump's twists and turns, are required to pretend to be in assessing what the real purpose, as opposed to a Trumped-up pretext, was for issuing a ban on entering the United States which applies to 100 million people, all of whom happen to be Muslims, even if not all of them actually plan to come to the US?

    What is the point of playing numbers games?

    Suppose that an openly anti-Semitic KKK member or neo-Nazi were elected US president, and immediately imposed a ban on citizens of Israel from coming to the US.

    Assuming that the Jewish population of Israel is 3 million, but only, say, 30,000, or 60,000 or even 100,000 had plans to come to or visit the US in the near future, would Nolan argue that the ban was not directed against Israel's entire Jewish population, merely because (in this hypothetical) the great majority of Israel's Jewish citizens had no plans to come here anyway?

    Roger Algase
    Attorney at Law
    Updated 05-15-2017 at 09:28 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    It's not about whether the ban mentions Muslims. As I explain in my article, the Hawaiian court found no indication of religious discrimination in the text of the order. If the order does not engage in religious discrimination, what is the justification for looking beyond the text of the order for indications of intent to discriminate? If such intent were to be established, it is irrelevant if the order does not discriminate.

    It's true that judges can look beyond the language of a document or a statutory provision to determine its meaning, but that is only proper when there is ambiguity or some other lack of clarity in the language of the document or statutory provision. If the written document is clear and unambiguous, it stands on its own. In fact, that's why people reduce important language to writing, so they won't have to worry about someone coming along and claiming the something else was intended.

    Also, the courts are using campaign statements to establish intent. Who believes the campaign statements that politicians make while they are running for office?
    Politicians say things that will get them elected. Remember George Bush senior's comment, "Read my lips, no new taxes!"

    I challenge you, Roger, to find one case in which a judge relied on campaign statements before the travel ban. According to my research, it never happened, which is understandable in view of the fact that it is inherently unreliable.

    And, Roger, people aren't found guilty of misconduct in this country because they have hate or prejudice in their hearts. They are only guilty of misconduct if they act on their hate or prejudice

    As for the number of people, I didn't raise that point. Roger did when he made the absurd claim that the travel ban affected 100 million people. It only affected people who wanted to come to the US during the 90 day period.

    Nolan Rappaport




    Updated 05-16-2017 at 12:57 AM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    And, Roger, Supreme Court precedent doesn't support your position either.

    In the decision denying a rehearing en banc on State of Washington v. Donald J. Trump, the court case that addressed the first version of the travel ban, Circuit Judge Jay Bybee wrote a dissent to defend the constitutional principle that the political branches, informed by foreign affairs and national security considerations, control immigration and that judicial review is limited by the Supreme Court precedent established in Kleindienst v. Mandel.

    In Mandel, the Supreme Court held that when the Executive exercises its power to make policies and rules for the exclusion of aliens on the basis of a facially legitimate and bona fide reason, the courts will not look behind the exercise of that discretion.

    Nolan Rappaport
  8. ImmigrationLawBlogs's Avatar
    I am glad that Nolan agrees with me about the law as stated in Mandel. As he points out in bold type, the issue is whether the Muslim ban executive order was in good faith.

    The courts have the power, and the obligation, to examine whether the executive order was issued in good faith.

    It is true that the president is given a good deal of discretion by law in making these decisions, and he might even have the benefit of a presumption of good faith under some of the relevant court decisions.

    I would not argue with that view.

    But this presumption can be rebutted, and Trump has rebutted it himself, with his own mouth and his own actions, before and after becoming president. I will not repeat the entire record of anti-Muslim hate which Trump engaged in during the campaign, and which he demonstrated in his top staff appointments after becoming president.

    The link I have provided to the report of the NYU Law School Brennan Center for Justice in my own May 15 Immigration Daily comment describes this whole sorry record. With regard to the December 7, 2015 speech in which Trump called for a world-wide ban on Muslim entry to the US, which was only the beginning of his record of anti-Muslim hate during and after the campaign, Trump never renounced that speech, and it was still on his official website right up until the day on May 8 that his lawyers made the bad faith, meretricious and even arguably fraudulent argument that Trump's executive order had nothing to do with religion.

    If the courts are required to accept this obvious lie without even looking into the actual facts, then it will mean that America has become a banana republic or a tin pot dictatorship in which the law is whatever El Presidente says it is.

    Or even worse, it would mean that America is turning into Putin's Russia, alleged connections with which Trump is now engaging in conduct arguably bordering on obstruction of justice in order to try to stop from coming to light - in the opinion of one of America's most respected legal scholars, Harvard Law School professor Laurence Tribe, as well a growing chorus of other observers.

    Again, see my own May 15 comment.

    Roger Algase
    Attorney at Law


  9. ImmigrationLawBlogs's Avatar
    See my above comment.

    Roger Algase
  10. ImmigrationLawBlogs's Avatar
    While this is admittedly not in direct response to Nolan's above article, I also have to marvel at how Nolan can obsess in some of his other ilw.com comments about American citizens who in his view, may be violating INA Section 274 by "harboring" non-criminal unauthorized immigrants by refusing to turn them over to ICE for deportation or otherwise attempting to protect them from Trump's ethnic cleansing dragnet, while Nolan says nothing about Trump's alleged obstruction of justice in the Comey firing (as Laurence Tribe of Harvard Law School, one of America's most respected legal scholars argues in a recent Washington Post oped), or, even more recently, about Trump's alleged leaking of highly sensitive national security information to the Russians in a White House meeting according to news reports too numerous to mention.

    A little imbalance in terms of perspective here, Nolan?

    Roger Algase
    Attorney at Law
  11. ImmigrationLawBlogs's Avatar
    See my above comment, which was repeated numerous times do to some apparent problem in the ilw.com system

    R.A.
  12. ImmigrationLawBlogs's Avatar
    My above comment was repeated numerous times due to an apparent problem with the ilw.com database.

    My apologies to readers. I have tried to delete the repetitions.

    Roger Algase
  13. ImmigrationLawBlogs's Avatar
    Repetition of my above comment deleted again.

    R.A.
  14. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I am glad that Nolan agrees with me about the law as stated in Mandel. As he points out in bold type, the issue is whether the Muslim ban executive order was in good faith.

    The courts have the power, and the obligation, to examine whether the executive order was issued in good faith.

    It is true that the president is given a good deal of discretion by law in making these decisions, and he might even have the benefit of a presumption of good faith under some of the relevant court decisions.

    I would not argue with that view.

    But this presumption can be rebutted, and Trump has rebutted it himself, with his own mouth and his own actions, before and after becoming president. I will not repeat the entire record of anti-Muslim hate which Trump engaged in during the campaign, and which he demonstrated in his top staff appointments after becoming president.

    The link I have provided to the report of the NYU Law School Brennan Center for Justice in my own May 15 Immigration Daily comment describes this whole sorry record. With regard to the December 7, 2015 speech in which Trump called for a world-wide ban on Muslim entry to the US, which was only the beginning of his record of anti-Muslim hate during and after the campaign, Trump never renounced that speech, and it was still on his official website right up until the day on May 8 that his lawyers made the bad faith, meretricious and even arguably fraudulent argument that Trump's executive order had nothing to do with religion.

    If the courts are required to accept this obvious lie without even looking into the actual facts, then it will mean that America has become a banana republic or a tin pot dictatorship in which the law is whatever El Presidente says it is.

    Or even worse, it would mean that America is turning into Putin's Russia, alleged connections with which Trump is now engaging in conduct arguably bordering on obstruction of justice in order to try to stop from coming to light - in the opinion of one of America's most respected legal scholars, Harvard Law School professor Laurence Tribe, as well a growing chorus of other observers.

    Again, see my own May 15 comment.

    Roger Algase
    Attorney at Law


    You are still ignoring my point that the order does not have language that discriminates against the Muslims. Even the Hawaiian court was unable to find such language. What would the Supreme Court's good faith exception apply to in this situation?

    Nolan Rappaport
    Updated 05-16-2017 at 04:27 PM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    While this is admittedly not in direct response to Nolan's above article, I also have to marvel at how Nolan can obsess in some of his other ilw.com comments about American citizens who in his view, may be violating INA Section 274 by "harboring" non-criminal unauthorized immigrants by refusing to turn them over to ICE for deportation or otherwise attempting to protect them from Trump's ethnic cleansing dragnet, while Nolan says nothing about Trump's alleged obstruction of justice in the Comey firing (as Laurence Tribe of Harvard Law School, one of America's most respected legal scholars argues in a recent Washington Post oped), or, even more recently, about Trump's alleged leaking of highly sensitive national security information to the Russians in a White House meeting according to news reports too numerous to mention.

    A little imbalance in terms of perspective here, Nolan?

    Roger Algase
    Attorney at Law
    I write about the harboring law to warn people that they can face extremely serious consequences if they violate it.

    Nolan Rappaport
  16. ImmigrationLawBlogs's Avatar
    If one reads the "harboring" statute, INA Section 274, and the case law concerning that statute which Nolan has not yet discussed so far as I am aware, but which I am planning to do in a future comment, it will be apparent that conduct which is far less serious and dangerous to the safety and security of the United States of America than Trump's alleged obstruction of justice in the FBI firing, which has now lead to the appointment of a special prosecutor (see below) could still run afoul of the extremely broad language of this statute and lead to throwing millions of Americans in jail for relatively trivial contacts with immigrants.

    Is this Jeff Sessions' and Donald Trump's vision for America?

    In late breaking news on May 17. the Justice Department has appointed a special prosecutor to look into Trump's or his top campaign staff's alleged illegal connections with Russia that might have influenced the outcome of the 2016 presidential election.

    http://www.politico.com/story/2017/0...a-probe-238524

    Is the pattern of duplicity, bad faith and outright lies that Trump has been "harboring" in attempting to justify his Muslim ban executive orders and his mass deportation agenda of ethnic cleansing against Hispanic and other non-white immigrants already in the United States, not to mention his demagogic assault on skilled legal immigrants from Asia as "job stealers" and "cheap labor", and which has now also become apparent in the scandal over his firing of FBI director Comey, about to signify the beginning of the end for his presidency?

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 06:51 PM by ImmigrationLawBlogs
  17. ImmigrationLawBlogs's Avatar
    I won't discuss the merits of Roger's attempt to turn his comment about my article into a Trump tirade, but I will agree with him that harboring is a very broad provision. I do not know how far a prosecutor can go in enforcing it. Can DOJ prosecute Roger for his articles that support illegal immigration? I doubt it.

    But what if Roger finds out about an undocumented alien who absconded when he got a notice to appear for deportation and gives him a place to stay, feeds him, loans him money, and loans him a car to drive to and from his unauthorized employment. Yes, I think the prosecutor would win that case.

    Worse yet. If the alien drives the car Roger loaned him and kills someone in a accident while he is driving under the influence, Roger could be sentenced to life imprisonment or death.

    Not at all likely, but it could happen.

    Nolan Rappaport
  18. ImmigrationLawBlogs's Avatar
    Nolan has still not answered my point on the basic flaw in his argument that the courts cannot go behind the face language of the Muslim ban executive orders to look at the surrounding circumstances relating to whether the order was issued in good faith, as in Kleindienst v Mandel.

    As I have also argued in my analysis of the 3rd Circuit's 2005 Herring decision, following the law of that case as stated by the Supreme Court some 50 years earlier (in the same litigation!) courts always have the inherent right to look into the question of whether a national security argument raised by the government in any situation may be a fraud upon the court.

    Nolan also doesn't answer my point that, just on the face of that order, the infamous WW2 order directing the internment of Japanese-American US citizens would not have been directed against people of Japanese ancestry at all. The order, which the US Congress and president apologized for by statute many years later, nowhere used the word "Japanese" in its text.

    Nolan's absurd argument that Trump's order banning 100 million citizens of six (originally seven) more than 99 per cent Muslim countries is not directed against Muslims because of their religion might just as well be used to argue that the notorious Chinese exclusion laws of the late 19th Century were not directed against Chinese as an ethnic group, because the law only applied to citizens of China itself, not to Chinese living in any other countries.

    However, just in case there is anyone who might ever be thinking of making such a ridiculous argument, I would point out that the Supreme Court in Chae Chan Ping (1889) expressly pointed out that the exclusion law was in fact based on race (and upheld the law as valid for that reason)!

    With his Muslim ban executive orders (original and current versions) Trump is showing the same animus and hatred against Muslims as a religion - expressed in so many of his other speeches and actions as well - that Congress and the executive showed against Chinese immigrants beginning 135 years ago when the first exclusion law was enacted in 1882.

    Are the courts going to allow Donald Trump to take America back to the spirit of those dark days in our history?

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 09:24 PM by ImmigrationLawBlogs
  19. ImmigrationLawBlogs's Avatar
    If pointing out that Trump is now facing a special prosecutor who will be looking into whether the president may have allegedly committed the crime of obstruction of justice, and whether he or his top staff may have allegedly illegally colluded with a dangerous and hostile foreign power to destroy the integrity of the electoral system on which our democracy depends, and that alleged conduct. if proven, is an immeasurably greater threat to the security of the American people than someone who gives a car ride to an unauthorized immigrant is a "tirade", because it implies that our Leader may be less than perfect, I cannot stop Nolan from doing so.

    This is (for the time being) still a country that respects freedom of speech, and Nolan's choice of epithets to support an absurd argument he has no chance of winning - namely that violating Section 274 of the INA is even remotely as serious or dangerous to our nation as what Donald Trump is being investigated for, is up to Nolan himself.

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 08:15 PM by ImmigrationLawBlogs
  20. ImmigrationLawBlogs's Avatar
    I would also respectfully point out that if Hillary Clinton had been elected president in the electoral college, not only in the popular vote as she was, and she were under investigation by a special prosecutor for conduct that was one twentieth, one fiftieth, or even one hundredth as serious as the obstruction of justice and related allegations that Trump is now being investigated for, her opponents would be howling and screaming for her to be impeached and locked up.

    I refer to my previous Immigration Daily comments in which I looked into the origin of the two ancient Greek words referring to the actors in Greek dramas who were "giving answers" (krites) from under (hypo) masks.

    As I pointed out, this lead to the Greek word "hypokrites" which has certainly come back to life today in the "New Era" (no, I am not saying "New Order" as they did in Germany in 1933) of Donald Trump.

    Roger Algase
    Attorney at Law
    Updated 05-17-2017 at 08:47 PM by ImmigrationLawBlogs
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