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Muslim Civil Rights Lawyer: Supreme Ct. Entry Ban Decision Promotes Discrimination Against All Muslims. Are Rights of Any Americans Safe? Roger Algase

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Update: June 28, 5:54 pm:

Some legal analysts have suggested that the Trump administration can easily get around the Supreme Court's exception to its decision to uphold Trump's Muslim ban order until the Court's October term begins. The way to do this, according to this argument, would be for the administration to issue consular "guidance" memos which would in effect instruct consular officers to refuse visas to citizens of the affected six countries, even when the applicants clearly meet the standard of having bona fide ties with the US in order to qualify for the exception to the ban as enunciated by the Supreme Court in its June 26 decision.

Then, the administration could rely on the doctrine of non-reviewability of consular officer visa decisions, set forth by the Supreme Court in Kerry v. Din (2015).

This argument is set forth, for example, by Santa Clara University Law Professor Pratheepan Gulasekaram as quoted in a June 28 Slate article

How Trump can get his Muslim Ban


The flaw in this argument is that, under Kerry v. Din, the doctrine of non-reviewability of consular visa denial by the courts is not absolute. It is limited to cases in which there is no "affirmative showing of bad faith" - a standard set forth by Justice Kennedy writing for the plurality in that case.

Admittedly, this is a standard which is not easy to meet. Very possibly, Justice Kennedy may not have contemplated that the behavior of any rational president or administration in connection with refusing admittance to the US to any immigrants or classes of immigrants would be egregious enough to put this standard into play.

But that was before Donald Trump became the president.

My original comment appears below.

In the June 27 issue of Immigration Daily, I wrote that the Supreme Court had given Donald Trump a "Pyrrhic" victory, or at best (from the president's standpoint) a very incomplete one, by upholding Trump's six almost 100 percent Muslim country entry ban (hereinafter "Muslim ban" - not some vapid and meaningless euphemism such as "travel ban", whatever that means) for 90 days (which Trump will without the slightest possible doubt seek to extend for as long as he can - either in its current form or under the guise of his latest "Extreme Vetting" mantra - whatever that means), but with a very significant loophole.

The loophole, as I explained in my comment and as numerous other writers have also pointed out) was that anyone from the six banned countries with bona fide ties to the US will be exempt from the ban entirely.

Since the Supreme Court gave at least some specific guidance as to what it meant by the term bona fide ties to the US, it would appear from its decision that a substantial percentage of the people from the six countries who are able to receive visas from US consular posts in the first place will be eligible to enter the US without being affected by the ban. (My guess was 95 percent - perhaps overly optimistic from the point of view of the affected citizens of the six almost 100 per cert Muslim countries).

This is because, few if any applicants in the six targeted countries would normally be able to have their visa applications approved unless they had substantial ties to the US in the first place.

Therefore, as I argued in my June 27 comment (which was posted on ilw.com on June 26 - see below), leaving the president's ban in place for people who do not have strong ties to the US would arguably not affect very many people, since very few of those people would have been able to get visas even without the ban.

However, no matter how much the president may have been disappointed - or "angered" - as he reportedly was by a lower court decision blocking his ban order - see: http://www.cnn.com/TRANSCRIPTS/1703/15/cnnt.02.html - by the thought of his administration's still being required by the Supreme Court decision to accept hundreds, or thousands, of people belonging to a group of people whom the president has made clear on numerous occasions that he would prefer not to admit the United States - a gens invisum (despised group of people) to use Virgil's famous phrase about Trojan refugees in Book 1 of the Aeneid - namely people who belong to the Muslim religion - there is still one extremely uncomfortable reality coming from that decision.

That reality is that even though the Court has carved out a significant loophole to its order upholding the ban decision, it still upheld the president's religious ban in principle. My above June 27 comment did not fully deal with this issue.

However, a Muslim civil rights lawyer and Harvard Law School graduate, Amir H. Ali, writing in The Guardian on June 27, has focused on the critically important underlying message that Trump conveyed to America and the world by issuing the Muslim ban orders in the first place, and which the Supreme Court confirmed by upholding the ban, even in part.

https://www.theguardian.com/commenti...discrimination

What is this underlying message in the Supreme Court's June 26 decision upholding the president's Muslim ban in part? It is a very simple one: that it is OK for the U.S. government to discriminate against Muslims because of their religion.

This means not just Muslims from the six (originally seven targeted countries. It means all Muslims.

And this leads to another fundamental question: If a country adopts a policy restricting the freedom of one group of people to exercise their basic rights, including freedom of religion, how secure will the basic rights of all other citizens of that country be, even if they are not members of the disfavored group (in this case, Muslims)?

Ali writes, in his above article:

"To understand the impact of the supreme court's decision, it is important to appreciate what it is like to be Muslim in the U.S. today: that your religion exposes to to the all-but-accepted-reality of routine deprivations of liberty and privacy each time you present yourself at the border.

This discrimination (whether subconscious or otherwise is an unwritten condition of your apparent offense of Flying While Muslim."


Ali continues:

"And it [the fear of discriminatory treatment at the US border] is rational even when the strength of your connection to the U.S. means that you cannot lawfully be denied entry. There are myriad examples of American Muslims - people who have an unqualified and irrevocable right to enter the US - being met at the border by practices such as discriminatory religious questioning, invasive cellphone searches and even temporary denial of entry."

And he concludes, in a stinging but well-justified rebuke to the Supreme Court in its June 26 decision:

"This point appeared to be lost on the court, which seemed to believe that affording discretion to deny entry to those people who fail its test will have no impact on the people who will pass the test. That reasoning reflects a fundamental misapprehension of what it is like to arrive in the US as a Muslim today.

To be sure, the court's decision is far more tolerable than reinstating the travel ban in full, as the three dissenting judges would have done. But when carving lines into Trump's travel ban, the court may well have unleashed some of the vitriol that lies directly beneath."


The last sentence above is the key. There cannot be the slightest rational doubt, based on the president's own statements and actions, both before and after taking office as president that his Muslim country entry ban orders (a much more accurate description than "travel ban". as I have mentioned above) were based on vitriol against Muslims purely because of their religion.

The 4th Circuit majority, a little more politely perhaps, referred to this as "animus" instead, but using a Latin word instead of an English one does not change the point.

During the presidential campaign, then candidate Trump infamously said (in March 2016): "I think Islam hates us".

http://www.cnn.com/2016/03/09/politi...-us/index.html

Can anyone seriously argue that Trump's Muslim ban orders (after becoming the second president in this century to be elected after losing the popular vote) were intended to accomplish any other purpose than to "return the compliment"?

And is that March 2016 statement, which was obviously the real motivation for Trump's Muslim ban orders, including the original, even more sweeping seven country ban which Trump now states that he regrets having "watered down", in essence any different from another statement, about a different but well known religious group made some 80 years ago - a statement that will be infamous as long as human history endures so as to need no translation? I refer to Joseph Goebbels, writing in support of Adolf Hitler's persecution of the Jews in the 1930's:

"Die Juden sind unser Unglueck!"

Roger Algase
Attorney at Law
algaselex@gmail.com

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Updated 06-28-2017 at 04:57 PM by ImmigrationLawBlogs

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