A Campaign of Fear Towards Immigrants

Nineteenth Century US political cartoon of Uncle Sam kicking out the Chinese, refering to the Chinese exclusion act.The question I am asked over and over lately: “how do I get temporary guardianship for my children in case I am detained and deported?” The fact that I hear this question, or some similar form of it, so frequently in recent weeks is indicative of the level of fear in the immigrant community. This fear is a direct result of the new policies of our President, his executive orders, the follow up memoranda from Homeland Security, and the waves of “targeted enforcement” by Immigration and Customs Enforcement (ICE) that have been unleashed nationwide.

Let’s be clear, ICE has been carrying out its daily work of initiating deportation proceedings long before this presidency. That has not changed. ICE currently has the same number of officers and the same amount of resources. There is no “deportation force” over and above what we already had – at least not yet. However, the tone and tactics being used have clearly changed. Virtually any undocumented immigrant is now a priority for removal, regardless of whether they have a criminal record. Media recently reported that ICE detained a domestic abuse victim in El Paso, Texas after going to court to file a restraining order. ICE also detained a young Dreamer from Argentina in Jackson, Mississippi just after leaving a press conference where she spoke out against these changes. People hear reports of these high-profile cases and wonder if they will be next.

It is the beginning of a campaign of fear directed towards not only the undocumented, but immigrants in general. Fear feeds rumors, which can turn fear into panic. This is the first step. Order a travel ban for Muslim-majority countries in the name of protecting us from terrorists. Call for more deportations of undocumented immigrants while labeling them as criminals. This scares immigrants, but also creates fear of the “other” among the wider general population. Is this the America we want to be?

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Ninth Circuit Rules 3-0 Against Trump Administration: Analysis and Explanation

Tonight, the Ninth Circuit issued an unanimous ruling in State of Washington v. Trump rejecting the Trump Administration’s motion for an emergency stay of the District Court’s temporary injunction.  That order by the District Court had the effect of halting enforcement of the President’s January 27 Executive Order suspending entry of aliens from seven specified countries into the United States.  In prior posts here and here, I argued that the January 27 Executive Order violated statutory provisions such as the 1980 Refugee Act and also that the Order violated the United States Constitution by discriminating on the basis of religion in the entry of immigrants and non-immigrants.

Tonight’s ruling by the Ninth Circuit is necessarily limited by the procedural posture of the case.  The court states at the outset:

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.  (opinion at p. 3)

Despite this procedural posture, the opinion issued by the court goes out of its way to make several strong statements of law.  First, the court firmly rejects the assertion of the Trump Administration that “the district court lacked authority to enjoin enforcement of the Executive Order because the President has ‘unreviewable authority to suspend the admission of any class of aliens.’ ” (opinion at p. 13).

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President Trump’s Executive Order is Still Unlawful

Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.”  The rollout of the Executive Order has been confused, and its implementation uneven.  Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries.  Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.

The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries.  Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country.  For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.

Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)).  This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries.  Section 212(f) says:

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (emphasis added)

By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens.  However, the Trump Administration has gone further.  The Trump Administration is turning aliens away from the border and returning them from whence they came.

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