The Topeka Capital Journal posted a picture on November 21 of immigration hardliner and (unofficial?) Trump advisor Kris Kobach. In his hand he held a leather portfolio - and his strategic immigration plan for Trump's first 365 days in office. 

Perhaps, some theorized, he meant to leak his plan. The old litigator's trick of priming the jury with something horrific to make the real slightly less horrific plan seem, well, less horrific. Perhaps he really was that careless.

It ultimately matters little. Put together with what he's actually said, and his history of hardline immigration enforcement, we know where his mind is. We have a pretty good idea of what he will be urging President Trump to do. He's expecting legal challenges to his plans. What he might not appreciate the razor focus his "leaked" plan provides to those who will be doing the challenging.

It's a plan that targets immigrants, reversed engineered in typical Kobachesque fashion to ensnare as many as possible. Kobach's M.O. is to create as many legal land mines that trigger deportation at the slightest touch. He knows the immigrant community. He knows how to play on people's irrational fear of immigrants. He works with people who know the process of government rulemaking to push these misguided policies through. And he tailors his policies for the immigrant communities he targets.

I want to make this clear. Kobach is an anti-immigrant hardliner. He has allied himself with some of the most extreme nativist and anti-immigrant groups in the country - serving of counsel to the Immigration Reform Law Institute (IRLI) - the legal affiliate of the Federation for American Immigration Reform (FAIR). FAIR (and its sister organizations, the Center for Immigration Studies and NumbersUSA) were all founded or nurtured by John Tanton, an avowed conservationist turned white nationalist who remained on the FAIR board for 32 years, until he mysteriously left 10 days after the New York Times reported about his deep connections to the three groups.

I am not saying Kobach is a "white nationalist." But I don't need to say it: he has adopted, promoted and defended policies with which white nationalists agree. There has been no Kobach policy that helps immigrants, or allays the fear in immigrant communities. 

He was a chief architect of NSEERS, a registry for certain Muslim male immigrants  in the wake of 9/11. 84,000 registered, 14,000 were placed in removal proceedings, and 3,000 were detained. Zero terrorism-related convictions. It was such an abject failure that the government itself suspended the program. Kobach advised Attorney General Ashcroft during the "liberal purge" of the Board of Immigration Appeals, when the entire pro-immigrant wing of the nation's highest immigration court was pushed out.  He sued multiple times to try to deny in-state tuition for undocumented immigrants, preferring to spend taxpayer money incarcerating people rather than educating them. He defended fear-driven ordinances sanctioning employment of and renting to undocumented immigrants. He designed Arizona's infamous "show me your papers" law, S.B. 1070, requiring police to attempt to ascertain immigration status and criminalizing the act of not carrying identification. Now he wants to bring back NSEERS (or perhaps a bigger and badder version of it), reinstitute failed programs like 287(g), cut off all Syrian refugee resettlement, and shockingly designate anyone merely arrested for any crime as a priority for deportation. This facilitates racial profiling - because even if the charges don't stick, an immigrant will find himself in removal proceedings. He adopts Trump's "extreme vetting" - and takes it to mean that people from certain countries will be questioned about such things as support for "Sharia law" (itself a misnomer, leaving the non-workability aside) and the Constitution. Other pictures perhaps taken from a different angle, show that stopping non-citizens from voting is a major issue to Kobach, despite the blowback over Trump's utterly unsubstantiated tweet that he would have won the popular vote but for the "illegal votes." (Clinton's popular vote lead currently stands at about 2.2 million.)

If it walks like a duck, swims like a duck, and quacks like a duck...

Kobach has grown to wield enormous influence over these anti-immigrant policies. They have cost taxpayers millions in legal fees to defend, and countless more in wasted and misdirected efforts. This is the natural outgrowth of policies rooted in hatred and fear. 

It's time to fight him. Advocates, lawyers, and like-minded people who understand where these policies are coming from can do a lot. Lawsuits can only take us so far with immigration issues. Immigration policy is born, lives and dies in the federal realm. It rarely ventures into the states, despite Kobach's efforts to the contrary. Kobach has been waiting for an opportunity to affect change at the federal level. He's going to go to town.

So he needs to be challenged in the courts, challenged in the halls of Congress, challenged in the public square. No longer can immigrant groups fight only for issues directly affecting them. It's time for Muslims to fight for Dreamers and against deportation raids, and Latinos to fight against NSEERS and extreme vetting. It's time for black Americans to fight for refugees from Syria and the Northern Triangle, and for white Americans to fight unchecked police power to arrest and detain immigrants. 

Tell Kobach his services are not needed, and that America is bigger than his immigrant-free fantasy.

It's not a blanket #MuslimRegistry, folks - but it should concern every single American. Here's why.

Let me say first I love the solidarity in response to yesterday's news about the "Muslim Registry." Non-Muslims are offering to register themselves, or become Muslim, in order to gum up the system - a form of civil disobedience.

However, this is a proposal only for Muslim immigrants. Citizens wouldn't be registered. (Let me clarify: This is just a proposal. It is not the law...yet.) This is *not* a blanket registry for all Muslims. What exactly it will look like - ie, whether it will profile based on religion or national origin - remains to be seen.

I'm afraid that calling it a #MuslimRegistry (ie, for all Muslims) obfuscates what's actually happening: the resurrection of NSEERS. This failed Bush-era program required Muslim male immigrants to register - and 84,000 did - and 14,000 found themselves in removal proceedings, with nearly 3,000 detained. Number of terror convictions? Zero.

Does this matter? Aren't we all in a database anyway? Turns out, it does matter. A lot. I can't overstate this:

Policies intended to thwart terrorism look to an individual's actions.
Policies intended to be bigoted and xenophobic profile based on race, religion, or national origin.

Kris Kobach (who seems to be advising the transition team) was one of the original architects of NSEERS. He also authored Arizona's infamous "show me your papers" law. His M.O. is to figure out ways to criminalize aspects of immigrant life to create more opportunities for interception by police. In other words, he creates "legal land mines" to trigger deportation at the slightest touch.

And now he's creating "NSEERS+."

Meanwhile, a far-right white supremacist has been appointed Chief of Staff. An avowed Islamophobe is within earshot of the new President. Right-wing anti-immigrant thinktanks like the Center for Immigration Studies have already put together a dystopian list of 79 executive actions President Trump can take to remove any semblance of due process for immigrants. (Yes - executive actions. The same ones they cried were unconstitutional when done by Obama.)

Ladies and gentlemen, welcome aboard the Trump Train. Next stop: Legalized bigotry. The rise of Trumpism should concern every single American.

However bad it might be policy-wise, it's probably constitutional as this article clarifies. It's hard to get judges to review policies over the admission of foreign nationals. I've often written that is the precise reason why, if you're looking for de jure bigotry, you'll find it in immigration laws, because courts are reluctant to tell Congress who they can let into the country. This is a result of the "plenary power doctrine" - which states that the admission of foreigners inheres in the ancient rights of sovereignty. Legalized bigotry will start with immigration laws. And that's why it should concern us all: like it or not, we're all on the Trump Train now.

Besides being an abject failure, NSEERS caused immense grief. I remember, as a young(er) lawyer, being amazed that our country would single out Muslims for such added scrutiny. I learned to always request both sides of the paper I-94 cards, because the back was usually where they wrote the FIN (fingerprint identification number) from registrees. FINs were scarlet letters, and I'd be filled with a sense of shame when I would ask my Muslim client, my brother in faith, for his scarlet letter. And the affidavits we'd have to prepare - so many we had a template - to try to defeat a finding of "wilful failure to register" which would trigger an automatic denial.

Because it was such a hastily put together machine, no one knew what to expect. Men were told that if they had a pending application for, say, a green card they would not be put into proceedings. They complied, and were detained and placed into deportation anyway. Fathers were needlessly deported away from their children and families. In once case, a client was placed into proceedings, triggering a needless 9 year battle for a green card. In another case, USCIS tried to unlawfully expand the NSEERS requirement to a Palestinian by trying to say he was a "Jordanian national" even though he was officially stateless. (Jordan was on the list; Palestine wasn't) We proved his statelessness and therefore NSEERS didn't apply.

This is the brainchild of Kris Kobach & Co.. Do you think he'll stop? NSEERS was just Windows 1.0. Emboldened and empowered by a party that has embraced bigotry as its platform, "NSEERS+" is a horrific prospect.

When the program was suspended in 2011 (absorbed into US-VISIT), it was such a breath of fresh air. Cases for Muslims got easier. It seems we didn't even have to sue them as much to get the green cards approved - despite the ugly CARRP program (another way Muslims are targeted - but that's another topic.)

Now all those horrible memories are coming back. Can you imagine if segregated water fountains made a comeback? This roller coaster of rights is a very unwelcome ride. This is what the "Muslim" flavor of exclusion looks like in 2016, but there are other flavors for other groups, too. Kobach & Co. will make sure of that.

So while I appreciate the gesture of solidarity and offers to register - as a Muslim immigration lawyer, I'd rather you make it clear to your Congressman that a vote for this misguided policy will result in a vote for their opponent in 2018. A vote against NSEERS is a vote for due process of law, and (what I hope still is) the American ideal that we don't discriminate against people - even when the law allows us to.

And if you want to come protest in solidarity with lines of innocent people shuffling along to get their scarlet FINs, I'll see you there.

What we make of it, that's what.

In his victory speech, our new President-Elect said, "I pledge to every citizen of our land that I will be President for all of Americans, and this is so important to me." (Emphasis added.)

But what about all the non-citizens of our land?

Trump's 100-day plan is horrific for immigrants. Deferred action for Dreamers, gone. Prosecutorial discretion, gone. In its place, deportation, detention of men, women, and children, and exclusion based on faith. I fear for a culture that will go from "no" to "hell no." No doubt, there are dark clouds on the horizon for non-citizens in America.

What does this mean for you, a resilient, enterprising group of people? 

First, it's impossible to tell exactly what will happen. And it further depends on your particular background: your immigration history, time in the US, ties to the community, and yes, your faith. But with the right advice, you can get some answers. So go get the right advice.

Second, some immigrants might not be affected immediately. If that's you, and you've been waiting, your wait is over. Take this as a priority. This is an insurance policy on your life in the United States.

Third, kill your fear, because fear kills your intelligence. You need to make sure you are calm enough to figure out what to do. The new President is surrounding himself with people who know how to create fear. Do NOT be a victim. Never forget that it was a minority of people who elected him into office. The majority of Americans are with you. I'm proud to be one of them.

Fourth, do not run and hide. This is the time to stand together with the majority of Americans who are with you. That's what the Trump supporters did, and it worked. I know that many of you have survived much worse than this. This is not bigger than you. You can do this. You will do this.

​
And to the supporters of President-Elect Trump:

Your struggles are every bit as real as the struggles of immigrants in this country. We all want prosperity and security. Problems come when we don't want for our neighbors what we want for ourselves. Instead of worrying about dividing the pie, let's bake a bigger one. You were right: you've been ignored and passed over for a long time. I strongly agree with what our new President said: you will be forgotten no longer.

But some of you supported him for other reasons, because you thought it would usher in a new America that was closed to people of different races and faiths. If that's you, know that you will be pushed back into the fringes of society where you belong. America is bigger than your fantasy white utopia, and we're not some ragtag guerrilla resistance calling for a revolution. We're Americans.


And finally, to our President-Elect and his new advisors:

You said, "For those who have chosen not to support me in the past, of which there were a few people, I'm reaching out to you for your guidance and your help so that we can work together and unify our great country."
​
You haven't yet earned the trust of the majority of Americans. But remember that you will be held to your word, whether you like it or not. Don't mistake peace building as a sign of surrender. Don't think your can deport opposing viewpoints. Don't think you can fire disagreement.

​You wanted the White House, you got it.

I wanted to send a message of support to immigrants and allies who might be feeling scared. Mandela said "If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart." The six languages I speak in this video are rusty, but I hope it does some good helping to conquer fear.
( PS: turn on subtitles)

A client of ours is a non-supermodel accused of working without authorization and not disclosing it on H-1B visa applications. That is, the same issue Melania Trump is being accused of.

Read this excerpt from a Notice of Intent to Deny and see how USCIS is treating my client. For the record, I believe they are wrong on the law and I'm fighting it. 

Back in September, Melania famously tweeted she was 100% in compliance with US immigration law. Her husband's attorney reviewed some of her history and - plausibly - suggested a perfectly legal sequence of events.  What was most glaringly missing from the attorney Wildes' carefully worded letter is a certification that Melania Trump followed US immigration law "100%" - or even that she was generally compliant. Melania is the one that makes that leap, not the lawyer. All the letter does is briefly review her immigration history - which as I said, sounds plausible - and refutes some of the media questions. But saying you didn't break a particular law doesn't mean you followed the law with "100% certainty."

Moreover, if there was undisclosed unauthorized work, it wouldn't necessarily appear in the "relevant immigration paperwork" - and we also don't know what Donald's immigration lawyer considered relevant. The letter is silent about whether Melania or her H-1B employer(s) complied with the terms of her H-1B status - unfortunately, wage violations are common in the industry.

Now, documents have come to light that seem to suggest she was paid before getting an H-1B. If that work was not disclosed (and it rarely is) then Melania's obtainment of permanent residency was unlawful. If it was disclosed - it would have been much harder for her to get that H-1B visa. Unless, of course, the supermodel exception applies.

I am not advocating for Melania's status to be revoked. But I am saying that immigration is not easy. Virtually no one is in "100% compliance" with the immigration law. Nor should they have to: USCIS is not a faultless agency: mistakes and inconsistencies do occur. We can no more call for deportation for all immigration violations than we can call for license revocation for anyone who's ever gone 1 mph over the speed limit.

My client might not become a citizen and could lose his green card. USCIS takes this seriously. For some, it can mean denaturalization: loss of citizenship.

If you're silent about the holes in Melania's immigration history, but think that a Central American woman fleeing gang violence and tries to cross the border should be deported, you need to check yourself.