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4th Cir. Upholds Stay of Muslim Ban Order: Majority and Dissent Both Misinterpret Key Phrase in Supreme Ct. Decision. Roger Algase

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On May 25, the full U.S. 4th Circuit Court of Appeals, in a 10-3 decision, upheld most of a District Court's injunction against the president's revised executive order barring an estimated 180 million people from six more than 99 per cent Muslim countries from entering the United States for alleged national security reasons.

The Court's majority determined that the president's asserted national security justification for the order was essentially a sham and was thrown in after the fact to try to justify a religious ban, in violation of the First Amendment to the Constitution prohibiting the government from disfavoring a particular religion.

The full text of the decision, along with the concurring and dissenting opinions can be found at

http://coop.ca4.uscourts.gov/171351.P.pdf

The main issue in the case, International Refugee Assistance Project v. Trump, was whether the courts have the power to look behind the surface language of the Executive Order and analyze its history in order to determine its real; purpose, or whether they are bound by the four corners of the order itself.

In his majority decision, Chief Judge Gregory quoted the old saying "None are so blind as those who will not see." and held that the courts, under the doctrine laid out in the controlling Supreme Court case of Kleindienst v. Mandel (1972), have the power to review a decision by the executive branch to deny a visa or entry to the US (to one person, in that case, not 180 million people) unless the decision to keep someone out of the US is for reasons that are "facially legitimate and bona fide".

Judge Gregory ruled that Trump's six Muslim country entry ban met the test of being "facially legitimate" because the order nowhere mentions Islam as a religion, but, on its face, is based only on nationality.

However, relying mainly, but not exclusively, on a long history of undeniably anti-Muslim statements that Trump made during the presidential campaign, and what the judge called the "vague" nature of the national security justifications set forth in the executive order, he held that the government failed to meet the second part of this test, namely that the order was issued in good faith.

In his dissent, however, Judge Niemeyer argued that the courts have no power to look behind the reasons for an entry ban executive order unless the order shows on its face that it was issued in bad faith. Moreover, the dissenting judge argued, looking into a presidential candidate's campaign statements in order to determine the history of an executive order would inhibit free political debate.

Without going at this time into the circumstances and history of Kliendienst v. Mandel, which I have written about previously, but just looking at the plain words of the key phrase, "facially legitimate and bona fide", which both the 4th Circuit's majority and dissent agreed was the controlling standard for determining the validity of the president's six country entry ban executive order, it is evident that both sides misinterpreted this phrase as applied to the case at hand.

First, there can be no doubt that, purely as a matter of fact, Judge Gregory's majority opinion is unassailable in its conclusion that the executive order was issued in bad faith based on the history of Trump's constant attacks on Muslims as a religion during the campaign (such as, as quoted by the Court: "Islam hates us", to give only one example).

Judge Gregory did not mention, but could have done so, that Trump also showed more than ample evidence of anti-Muslim animus after becoming president by appointing General Michael Flynn and Breitbart News Editor Stephen Bannon, both of whom are on record as making the strongest possible statements imaginable against Islam as a religion (Flynn called Islam as "cancer") as top presidential advisers.

(According to news reports, Trump still even now regrets having fired Flynn in an unrelated scandal.)

While Judge Gregory was unquestionably on solid ground on the question of the president's lack of good faith in issuing the order, as set forth in the above Mandel standard, the jjudge was mistaken in concluding that Trump's executive order met the first part of Mandel's two-part test, i.e. being "facially legitimate".

Judge Gregory found that Trump's order was legitimate on its face because it did not specifically mention Muslims or target Islam as a religion. In other words (my own, not Judge Gregory's), since the order did not say: "I hate Muslims and I want to keep as many of them out of my country as I can legally get away with barring." it was "facially" acceptable.

With all due respect to Judge Gregory, this was a clear misreading of Trump's executive order.

How could a blanket order barring 180 million people (to use the figure Judge Gregory mentions in his decision), consisting of the entire population of six almost 100 percent Muslim countries (with only a few exceptions which Trump's own presidential spokesperson and adviser, Stephen Miller referred to as merely "technical" - see Judge Gregory's opinion), be anything other than a ban directed against Muslims as a religion on its face?

Even the infamous 1880's and 1890's laws banning citizens of China, known at that time and to subsequent history as the "Chinese Exclusion Laws" did not ban every Chinese citizen - they "only" banned Chinese "laborers". Chinese citizens who were "merchants" were not covered by the ban.

But no one ever argued, or has ever argued since, that the exclusion laws were not directed against Chinese as an ethnic group merely because there were some exceptions (in all likelihood many millions of people, if one counts all of the people in China at the time who would have qualified as "merchants").

Indeed the Supreme Court itself, in the "Chinese Exclusion Case" (Chae Chan Ping, 1889), made clear in upholding the original exclusion law, that the intent was to bar Chinese immigrants because of their race.

Therefore, Judge Gregory's finding that Trump's executive order was "facially legitimate", and was only defective because of its failure to meet the good faith requirement was incorrect.

Turning to Judge Niemeyer's dissent, an equally serious, if not even more so, misunderstanding of the Mandel phrase "facially legitimate and bona fide" becomes apparent.

Judge Niemeyer interprets the term "facially" to mean both "facially legitimate" and "facially" bona fide. But this is an obvious tautology.

Under this interpretation, "legitimate and "bona fide " would mean the same thing, because a statement that is not in good faith on its face cannot possibly be "legitimate".

Moreover, how can it ever be possible to tell that a statement is made in bad faith just by looking at the four corners of the statement itself? "Bad faith" always implies misrepresentation or intent to deceive.

If a statement is based on a lie, how can anyone tell that merely from the statement itself, unless the statement admits that it is false, which never happens?

(In that case, it would recall the ancient Greek paradox: "All Cretans are liars. I am from Crete. Am I lying or telling the truth?")

Therefore, while Judge Gregory's conclusion was correct that the president's executive order was unconstitutionally invalid as religious discrimination because the national security justification was given in bad faith, he should also have determined that the order was illegitimate as prohibited religion discrimination on its face as well.

With regard to Judge Niemeyer's dissent, the argument that the executive order was valid because it showed no sign of bad faith on its face, was flawed, because, by definition, it is virtually impossible for bad faith ever to appear on the face of any document, and one can only tell if there is bad faith through extrinsic evidence.
_______________________________
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 (including H-1B, O-1, J-1 work visa and green card Labor Certification applicants, among others) from diverse parts of the world to realize their dream of living and working in America.

Roger's email address is algaselex@gmail.com


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Updated 05-26-2017 at 04:54 PM by ImmigrationLawBlogs

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