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Supreme Court Hands Trump Pyrrhic "Victory" by Upholding Muslim Ban Only Against People Not Likely to Come to U.S. Anyway. Roger Algase

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Update: June 26, 9:15 pm:

For another opinion supporting my own view that the June 26 Supreme Court decision reinstating parts of Trump's Muslim entry ban order was considerably less than an overwhelming victory for the president; and that it can even be looked at a resounding defeat for Trump if one focuses on the fact that lifting the injunction will probably make very little difference in who actually gets admitted to the US from the six countries affected, with or without the entry ban, see:

Sabrina Saddiqui, writing in The Guardian:

https://www.theguardian.com/us-news/...uling-analysis

Nonetheless, even if the president's "victory" in having at least part of his ban reinstated may be more symbolic than in actual practice, the message that the Supreme Court is sending to the Muslims of America - and the world - is highly disconcerting for the future of religious freedom in America and of our democracy.

The message is that the highest court in the most powerful and respected nation in the world is willing to wheel and deal away basic religious equality and human rights for almost 200 million people in the six countries and their co-religionists in the US, and accept second-class status for American Muslims, while branding their religion as a pariah one that is just a bit less "equal" than the others.

By banning, even "temporarily" (and of course Trump is going to extend the ban, most likely re-branded as "extreme vetting", for as long and as often as he can, especially encouraged by the failure of the Supreme Court to oppose him more vigorously this time around - that is a given) almost 200 million people who do not have close ties with America, simply because of their religion, the Court is not only rewarding the president for his bigotry, bad faith and grab at imperial power in issuing the ban orders in the first place, but is encouraging him to adopt even wider, more bigoted and dangerous (for our democracy) ban or exclusion policies in the future.

Today, Trump may have only succeeded in imposing a largely theoretical ban against a group of people who might not have been able to get visas anyway even without the ban.

But who knows who will be the object of Trump's immigration bans or "extreme vetting" tomorrow? Most or all immigrants from outside Europe, as in the infamous 1924 Johnson-Reed law which both Trump's AG, Jeff Sessions (in 2015) and, (90 years earlier) an aspiring young German politician named Adolf Hitler wrote about so favorably?

Any immigrant or visitor from anywhere in the world who has ever spoken out against Trump, or who refuses to pledge personal loyalty to him, as Trump allegedly asked former FBI Director James Comey to do before firing him? It has happened in other countries. It could happen in America.

Did the Supreme Court, on June 26, 2017 just make it even more likely that, one day soon, it will happen in America?

Update: June 26, 2:10 pm:

In its decision to uphold the parts of the lower courts' temporary injunctions against enforcing Trump's entry ban that would bar citizens of the six targeted Muslim countries against people from those countries who have bona fide connections with the United States (see below), the Supreme Court, for the fist time that I am aware of, appears to be putting non-permanent resident foreign citizens who have bona fide connections with the US in the same category along with permanent residents in terms of having rights that take precedence over the executive's claimed unlimited right to decide who can enter the United States under the Plenary Power doctrine.

In doing so, the Supreme Court may have opened the door to a significant weakening of that doctrine, which dates from the period of the infamous Chinese exclusion laws. "Plenary Power" at least in theory, gives the executive and Congress exclusive power over all admissions to the US by foreign citizens.

While the Court did not specifically discuss Plenary Power in its decision, by making this important distinction, the Court may have weakened the Plenary Power doctrine to the point where, possibly at some time in the future, this doctrine might wind up in the dustbin of American immigration law history where it deserves to be.

This is not to deny, of course, that any judicial support for Trump's Muslim ban, directed against even one person based on religion, is still a vote in favor of prejudice and bigotry, and against the values of equal justice and human rights on which America is based, and which are now under unprecedented attack in this administration.

My original comment follows:

In a per curiam decision from which the Court's three most conservative Justices dissented in part, the Supreme Court on June 26 agreed to hear the Trump administration's appeal from two Circuit Court decision enjoining implementation of the entry ban against citizens of six targeted almost 100 percent Muslim countries, but denied the government's motion to lift the Circuit Court injunctions against enforcing the ban against citizens of those countries who have a bona fide connection to the US - i.e. the people who are most likely to want to come to this country and who were the main targets of Trumps ban orders.

The Court, in an evident bone thrown to the administration and to the Justice Department lawyers defending the Muslim ban, agreed to lift, for 90 days, the lower courts' injunctions against banning people who would be the least likely to want to come to the US or to be able to receive visas if they applied - namely people who have no connection with the U.S.

The Supreme Court, in its decision, also indicated that by the time the case comes up for hearing in October, the entire entry ban order may be moot.

While the president may no doubt try to "Trumpet" this decision as a resounding victory, it is, in reality, closer to the type of victory won by King Pyrrhus in ancient Greek history. This is not the type of "victory" that most rational people are looking for in any situation.

The decision, however, is likely to cause a good deal of inconvenience, hardship and confusion at US airports this summer as various immigration officers raise questions about whether people from the six countries entering the US have the requisite bona fide connections with the U.S.

There will no doubt be a good deal of litigation in the lower courts over this question during the next 90 days, and during the periods over which it is virtually certain that Trump will seek to extent the "temporary" (ha, ha, ho, ho, haw, haw haw, - who on earth really believes that?) ban.

The three dissenting Justices wanted to lift the Circuit Court injunctions in their entirely and reinstate Trump's original six-country ban order against all of the approximately 180 million citizens of those countries, almost all of whom choose to attend mosques rather than churches or synagogues.

No surprise here in the case of Justices Thomas and Alito, but one can express some surprise about Justice Gorsuch, who strongly stood up in favor of immigrant rights against executive overreach when Obama was president and Gorsuch was sitting on the 10th Circuit, but who now is evidently willing to give Trump virtually imperial powers in this area.

Et tu, Neil?

The full text of the Court's decision can be accessed by going to the June 26 Washington Post article:

Supreme Court Will Hear Travel Ban Case

and clicking on the direct link to the decision in that article.
__________________________________
Roger Algase is a New York immigration lawyer, and a graduate of Harvard College and Harvard Law School, who has been helping mainly skilled and professional immigrants from diverse parts of the world with work visas and green cards for more than 35 years.

Roger focuses mainly on H-1B, O-1 and J-1 work visas, and on green cards through labor certification (PERM) and through opposite sex or same sex marriage. Roger's email address is algaselex@gmail.com

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Updated 06-27-2017 at 06:08 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    Victory for Trump: SCOTUS Restores Vast Majority of Travel Ban

    "Notably absent from the court’s decision is any analysis of Trump’s campaign statements. Moreover, the only dissenters from the opinion (justices Gorsuch, Alito, and Thomas) wanted the injunctions vacated in their entirety. They are correct that the court’s ruling will invite further litigation as litigants test the boundaries of the “bona fide relationships,” but the difference between the dissenters and the six remaining justices was only over the proper extent of Trump’s legal victory."
  2. ImmigrationLawBlogs's Avatar
    Under this decision, probably 95 percent of the people who would have actually been eligible to receive visas because of genuine reasons to come to the US without a ban will be exempt from the entry ban anyway.

    Students, employees, close family members and other people with ties here will still be able to come this summer.

    Those are the people whom Trump was trying the hardest to keep out, and the ones whom the lawsuits were meant to benefit the most.

    True, tourists won't be able to get in this summer. When was the last time you saw a tourist bus in the US full of visitors from Somalia or Yemen?

    Trump has won a victory - just as King Pyrrhus did.

    Roger Algase
    Attorney at Law


    Really Roger, you are saying that 95% of the people from the six countries wouldn't have come anyway? What happened to your claim that the ban prejudiced the 200 million Muslims in these countries?

    Nolan Rappaport
    Updated 06-29-2017 at 12:49 PM by ImmigrationLawBlogs
  3. MKolken's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Under this decision, probably 95 percent of the people who would have actually been eligible to receive visas because of genuine reasons to come to the US without a ban will be exempt from the entry ban anyway.
    I wouldn't be so quick on the 95% number. The applicant still maintains the burden to establish they have a bona fide relationship. And under Kerry v. Din the Trump admin may allow people to apply and then deny without giving a reason which will afford due process and frustrate review.
  4. ImmigrationLawBlogs's Avatar
    I agree that there will no doubt be plenty of lower court litigation over the definition of bona fide relationship, most of which the Trump administration is likely to lose.

    However, reading this decision, it looks as if, intentionally or otherwise, the Supreme Court may have carved out an exception to the "Plenary Power" doctrine that foreign citizens seeking admission have no right to challenge exclusion decisions in court.

    There already, as a practical matter, is an exception to this doctrine for LPR's.

    The Supreme Court may just have also created an exception for foreign citizens with "bona fide" ties to the US.

    Roger Algase
    Attorney at Law
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by MKolken
    I wouldn't be so quick on the 95% number. The applicant still maintains the burden to establish they have a bona fide relationship. And under Kerry v. Din the Trump admin may allow people to apply and then deny without giving a reason which will afford due process and frustrate review.
    Roger ignores the majority decision in Kerry v. Din so he can rely on Kennedy's concurring opinion.

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I agree that there will no doubt be plenty of lower court litigation over the definition of bona fide relationship, most of which the Trump administration is likely to lose.

    However, reading this decision, it looks as if, intentionally or otherwise, the Supreme Court may have carved out an exception to the "Plenary Power" doctrine that foreign citizens seeking admission have no right to challenge exclusion decisions in court.

    There already, as a practical matter, is an exception to this doctrine for LPR's.

    The Supreme Court may just have also created an exception for foreign citizens with "bona fide" ties to the US.

    Roger Algase
    Attorney at Law
    Roger, it is too soon to be talking about carving out an exception to plenary power. The Court has not made a decision on the merits. The only thing we can say for sure at this point is that the Court thinks it is likely that Trump will prevail on the merits. Otherwise, they would not have granted even a partial stay of the injunction.

    In any case, your expectation is unrealistic. The basis for considering ties to American family members and other entities is that those parties may have rights of some kind. It by no means suggests that the aliens will be able to appeal visa denials. If there are appeal rights, they will belong to the American family members and other entities, not the aliens, which has always been the case with visa petition denials. The alien beneficiaries of visa petitions have no standing to appeal a visa petition denial.

    And who would hear their appeals? The immigration court has no jurisdiction over issuing visas. That is handled by the State Department, and State has never established a system for litigating visa denials.

    And there won't be "plenty" of litigation over "bona fide" ties either. You have to exhaust administrative remedies before going to court, and it is not apparent that there are any administrative remedies for challenging a denial on that ground. Trump would have to create an appeal procedure, and I didn't see anything in the Court's order requiring him to do it.

    But let's suppose that one already exists that I don't know about. Do you think the Trump administration is going to expedite appeals, or even the initial determination for that matter. It isn't at all likely that many cases will complete the administrative level before the Court hears arguments in October, and by then the new ban will be in effect which will have replaced the travel ban that is the subject of the bona fide ties issue.

    Nolan Rappaport
    Updated 06-29-2017 at 01:11 PM by ImmigrationLawBlogs
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